Burton, Sabina v. Board of Regents of The University of Wisconsin System et al

Brief in Opposition

W.D. Wis.May 22, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN SABINA BURTON, Plaintiff, v. DR. ELIZABETH THROOP, DANIEL FAIRCHILD, DR. ELIZABETH FRIEDERS, DR. QIONG LI, DR. MARY ROSE WILLIAMS, DR. STACI STROBL, and the BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendants. No. 17-cv-36 PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS THE BLAKE HORWITZ LAW FIRM, LTD. Blake Horwitz, Esq. Kara Amouyal, Esq. 111 W. Washington St., Suite 1611 Chicago IL 60602 Telephone: (312) 676-2100 Fax: (312) 445-8741 Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 1 of 20 TABLE OF CONTENTS INTRODUCTION……….………………………………………………………………………1 ARGUMENT…………………………………………………………………………………2-16 I. COUNT I - § 1983 Violation of Procedural Due Process Rights, Failure to Intervene, Conspiracy to Violate Procedural Due Process Rights........................2-9 A. Factual Background……………………………………………………………….2-3 B. Plaintiff identified a property right, bestowed upon her by the Wisconsin legislature and her employer, and adequately pled a violation of that right without due process of law………………………………..3-4 C. Each Defendant Commission Members had an opportunity to intervene in the denial of Plaintiff’s right to a grievance hearing, but failed to do so…………………………………………………………………..4-5 D. Plaintiff’s properly pled § 1983 conspiracy claim is not barred by the intra-corporate conspiracy doctrine………………………………………6-8 1. The Defendants’ argument is incorrectly made pursuant to § 1985 rather than § 1983, the statute under which Plaintiff’s claim originates………………………………………………………………........6 2. It is not established that the intracorporate conspiracy applies to § 1983 claims and, even if it does, the individual Defendants acted outside the scope of their authority, were motivated by personal bias, and acted in accordance with discrimination that permeated the entity………………………………………..6-8 a. The individual Defendants acted outside the scope of their authority when they violated the rules and policies of the University in denying Plaintiff her right to grievance hearings…………………………………………………….7 b. The individual Defendants were motivated not by the interests of the University, but solely by personal bias in denying Plaintiff her right to a grievance hearing…………………………………………………………...7-8 Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 2 of 20 c. The individual Defendants’ actions in denying Plaintiff her right to a grievance hearing were part of a “broader discriminatory pattern” at UWP that “permeated the ranks of [UWP’s] employees”…………………………………………………………………….8 E. The individual Defendants knowingly violated University rules, implemented pursuant to Wisconsin law, to deny Plaintiff her right to a grievance hearing and thus are not entitled to qualified immunity…………...9 II. Count II - Retaliation Pursuant to Title VII and Count III - Hostile Work Environment Pursuant to Title VII…………………………………………………………………………...10-16 A. Counts II and III are timely pursuant to Seventh Circuit precedent……………..10 B. Issue preclusion does not bar the essential allegations in her Amended Complaint and Defendants have not stated the relief they are seeking………………………………………………...……..10-12 C. Plaintiff adequately pled a claim for retaliation pursuant to Title VII………12-14 1. Plaintiff alleged materially adverse employment action………………………12-13 2. Plaintiff alleged a causal connection between the materially adverse action and the protected activities………………………...13-14 3. Any insinuation that Plaintiff engaged in “bad behavior” is improper and should be disregarded……………………………………………...14 D. Plaintiff adequately pled a claim for hostile work environment pursuant to Title VII…………………………………………………………….14-16 III. Should this Court Find that Any of Plaintiff’s Claims are Not Adequately Pled, Plaintiff Requests Leave of this Court to Correspondingly Amend her Complaint and to Add Additional Allegations And Claims……………………………………………………………………………...16 CONCLUSION…………………………………………………………………………………17 Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 3 of 20 1 INTRODUCTION Beginning in October of 2012, Plaintiff has undertaken a series of protected activities pursuant to her employment with the Defendant Board. Beginning in March of 2013, Plaintiff filed grievances through the Complaints and Grievances Commission of the University of Wisconsin- Platteville (“UWP); filed complaints with the Wisconsin Workforce Development Equal Rights Division (“ERD”), the Equal Employment Opportunity Commission (“EEOC”); and, finally, filed a lawsuit against the Defendant Board (“the original lawsuit”). These grievances and complaints were all based upon alleged discrimination and harassment on the basis of sex and based upon alleged retaliation and harassment on the basis of protected activities. Since the original lawsuit, the Plaintiff has consistently been subjected to a pattern of discrimination, harassment, and retaliation such that it has permeated her workplace, resulting in the current lawsuit. Defendants, however, ask this Court to ignore the very real and very serious actions taken against Plaintiff merely because the Defendant Board was successful in the original lawsuit. However, although Plaintiff may not have been successful in her previous efforts, the Defendant Board and its employees are not entitled to that which they ask: essentially, carte blanche to continue harassing, retaliating against, and discriminating the Plaintiff based on her previous, and continued, protected activities. This Court should deny Defendants’ Motion to Dismiss and allow Plaintiff to move forward with her case to hold Defendants responsible for their illegal actions. Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 4 of 20 2 ARGUMENT I. COUNT I - § 1983 Violation of Procedural Due Process Rights, Failure to Intervene, Conspiracy to Violate Procedural Due Process Rights Plaintiff’s Count I (violation of procedural due process rights, failure to intervene in the violation of procedural due process rights, and conspiracy to violate procedural due process rights) should not be dismissed because Defendants have not shown that “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations”. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). A. Factual Background On October 28, 2014, Defendant Throop emailed the Plaintiff a Letter of Direction (“LOD”) [Dkt. #10, par. 111-112]. This LOD attempted to essentially censure Plaintiff for protected activity and/or for reasons that were factually inaccurate. [Dkt. #10, par. 117-118]. For almost a year, Plaintiff attempted to enforce her right to a grievance hearing concerning the LOD, but eventually put that effort on pause in October of 2015. [Dkt. #10, par. 121-125]. On April 26, 2016, Plaintiff renewed her grievance against Defendant Throop by informing each member of the Complaints and Grievances Commission (Defendants Fairchild, Frieders, Li, Williams, and Strobl - collectively, “the Commission members”) about the renewed grievance. [Dkt. #10, par. 127-129]. In that same writing, Plaintiff also brought a grievance against Deb Rice and requested grievance hearings. [Dkt. #10, par. 130, 163]. Concerning the LOD, Plaintiff stated she possessed testimony and documents proving the factual inaccuracy underlying the LOD and proving the fact that the LOD was based on protected activity. [Dkt. #10, par. 132]. The grievance policy in place at the time guaranteed Plaintiff’s right to a hearing within 20 working days, held no prohibitions against reinstated grievances, and did not allow for a grievance be denied solely because it has been reinstated. [Dkt. #10, par. 123, 140-142]. Despite this, and Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 5 of 20 3 despite being state actors charged with upholding Wisconsin state law and UWP’s policies and rules, the Commission refused to grant the Plaintiff the hearings to which she was entitled. [Dkt. #10, par. 137, 148-149, 167]. The Defendant Commission members decided to refuse Plaintiff this protected right after conspiring, along with Defendant Dean Throop, to do so. [Dkt. #10, par. 148- 153]. In denying the Plaintiff’s right to a hearing, each Defendant Commission Member, along with the co-conspirator Defendant Throop, knowingly violated the Plaintiff’s procedural due process rights [Dkt. #10, par. 146-147]. B. Plaintiff identified a property right, bestowed upon her by the Wisconsin legislature and her employer, and adequately pled a violation of that right without due process of law The Defendant Board, in conjunction with the Wisconsin legislature, gave Plaintiff the right to a grievance hearing. Denying her that hearing is a violation of her procedural due process rights because “when state law confers tenure or some other right on a public employee…the right is considered a form of property of which the employee may not be deprived without due process of law.” Swick v. City of Chicago, 11 F.3d 85, 86 (7th Cir., 1993); see also Powell v Fujimoto, 119 Fed. Appx. 803, *5-6 (7th, 2004). The Plaintiff, injured in her future employment from the LOD and from Ms. Rice’s defamatory statements, invoked the right to a grievance hearing; the individual Defendants violated that right. [Dkt. #10, par. 111, 117-119, 121, 123-124, 127-145, 163, 167-168]. Defendants attempt to frame Plaintiff’s claim as a “unilateral expectation of [the claimed interest].” [Dkt. #16, p. 5 (quoting Santana v. Cook Cty. Bd. Of Review, 679 F.3d 614, 621 (7th Cir., 2012)]. This is an effort to obfuscate the truth, which is that Defendants are asking this Court to rubberstamp their decision to allow one of Plaintiff’s supervisors and one of Plaintiff’s co- workers to attack Plaintiff’s name, reputation, honor, and/or integrity and to limit employment Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 6 of 20 4 opportunities by making defamatory statements and then to deny Plaintiff her employer-given right to bring a grievance based on those statements. [Dkt. #10, par. 111, 117-119, 121, 123-124, 127- 145, 163, 167-168]. This Court should decline to do so because Plaintiff has adequately pled a claim for a violation of her procedural due process rights. In UWS Chapter 6, the Wisconsin legislature decreed that “the faculty of each institution shall designate a committee or other appropriate faculty body to hear faculty grievances under rules and procedures established by the faculty of the institution in conjunction with the chancellor.” UWS Ch. 6.02. This statute does not give the Defendant Board or the individual Defendants any leeway in: (a) establishment of rules and procedures for hearing grievances and (b) establishment a committee or other body that (c) hears the grievances according to the established rules and procedures. See id. Pursuant to that law, the University of Wisconsin- Platteville (UWP) established a set of rules and procedures for a grievance. [Dkt. #10, par. 123, 140-142]. Those rules and procedures, backed by the full force of Wisconsin law, bestowed upon Plaintiff the right to have her grievances heard “within 20 working days of the written submission of the grievance”. [Dkt. #10, par. 123]. In short, it bestowed upon her a property interest in a grievance hearing that cannot be taken away by the whim of the members of the Complaints and Grievances Commission. See Swick, 11 F.3d at 86. The individual Defendants should be held to account for violating Plaintiff’s procedural due process rights. [Dkt. #10, par. 123, 127-130, 137, 140-142, 146-147, 163, 167-168]. C. Each Defendant Commission Members had an opportunity to intervene in the denial of Plaintiff’s right to a grievance hearing, but failed to do so Defendants’ argument regarding failure to intervene completely ignores Plaintiffs well- pled facts. For the purposes of the Motion to Dismiss, the following facts are deemed true: In April and May of 2016, Defendants Fairchild, Frieders, Li, Williams, and Strobl were the members of Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 7 of 20 5 the Complaints and Grievances Commission. [Dkt. #10, par. 127]. On April 26, 2016, Plaintiff informed each and every member of the Complaints and Grievances Commission, in writing, that she was reinstating her grievance against Defendant Dean Throop (and was requesting a hearing) and that she was instituting a grievance against Deb Rice. [Dkt. #10, par. 128-129, 163]. On May 3, 2016, Plaintiff learned that the Commission refused to hear her grievances. [Dkt. #10, par. 137, 167]. The Commission did this even though the grievance policy does not permit the Commission members to deny a grievance solely because it is renewed or reinstated. [Dkt. #10, par. 141-142]. The Commission did this even though Plaintiff had a right, per UWP policy, to a hearing “within 20 working days of the written submission of the grievance”. [Dkt. #10, par. 123]. Each member of the Complaints and Grievances Commission (i.e., Defendants Fairchild, Frieders, Li, Williams, and Strobl) participated in, or failed to intervene in, the decision to deny Plaintiff her right to grievance hearings. [Dkt. #10, par. 148]. Therefore, Defendants assertions that Plaintiff “has not alleged that the individual committee members even knew that Burton asked for her grievance to be reinstated” and that Plaintiff “does not allege that they sat idle while someone else (apparently, the Board of Regents or perhaps the Commission as a whole) decided the grievance would not be heard” are patently false. Every Commission member learned of the grievances on April 26, 2016 and every Commission member either participated in, or failed to intervene in, the decision to deny Plaintiff a hearing, against University policy and in violation of Plaintiff’s right. [Dkt. #10, par. 123, 127- 129, 137, 141-142, 148, 163, 167]. Plaintiff’s claim for failure to intervene should stand. Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 8 of 20 6 D. Plaintiff’s properly pled § 1983 conspiracy claim is not barred by the intra-corporate conspiracy doctrine 1. The Defendants’ argument is incorrectly made pursuant to § 1985 rather than § 1983, the statute under which Plaintiff’s claim originates As a preliminary matter, the Defendants’ argument as to Plaintiff’s conspiracy claim was made under § 1985 rather than § 1983. Plaintiff’s claim, however, was made exclusively under § 1983 and makes no mention of § 1985. [Dkt. #10, p. 20]. Defendants have thus waived their argument to Plaintiff’s § 1983 conspiracy claim because “the federal court will not invent legal arguments for litigators”. Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir., 1995). 2. It is not established that the intracorporate conspiracy applies to § 1983 claims and, even if it does, the individual Defendants acted outside the scope of their authority, were motivated by personal bias, and acted in accordance with discrimination that permeated the entity Even if Defendants had not waived their challenge to Plaintiff’s conspiracy claim by arguing under the incorrect statute (but see, supra), Defendants cannot overcome the fact that “the Seventh Circuit has yet to decide whether the doctrine applies § 1983 conspiracy claims”. Drager v. Village of Bellwood, 969 F. Supp. 2d 971, 985 (N.D. Ill., 2013). Further, even assuming, arguendo, that the doctrine does apply in § 1983 cases, the intracorporate conspiracy doctrine is not the absolute that Defendants claim it to be. Specifically, the intracorporate conspiracy doctrine does not apply when the Defendants act outside of the scope of their authority, as is the case here. See Hartman v. Bd. Of Trustees of Community College Dist. No. 508, Cook County, Ill., 4 F.3d 456, 469 (7th Cir., 1993); Dombrowski v. Dowling, 459 F.2d 190, 193 (7th Cir., 1972); Drafer, 969 F. Suppl. 2d at 985. Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 9 of 20 7 a. The individual Defendants acted outside the scope of their authority when they violated the rules and policies of the University in denying Plaintiff her right to grievance hearings As alleged in the Amended Complaint, the individual Defendants conspired together to deprive Plaintiff of her right to a grievance hearing. [Dkt. #10, par. 128-129, 137, 146-153]. The individual Defendants did so outside of the scope of their authority because the UWP grievance policy did not permit the Defendants to deny Plaintiff’s right to a hearing. [Dkt. #10, par. 140- 142]. In fact, the grievance polocy required that Plaintiff receive a hearing “within 20 working days of the written submission of the grievance”. [Dkt. #10, par. 123]. The Defendants’ direct violation of UWP policy and rules forces their actions outside of the scope of their authority as their authority extends only to upholding the policies and rules as members of the Complaint and Grievances Commission and employees of the university. They are therefore not protected by the intracorporate conspiracy doctrine. See Hartman, 4 F.3d at 469; Dombrowski, 459 F.2d at 193; Drafer, 969 F. Suppl. 2d at 985. b. The individual Defendants were motivated not by the interests of the University, but solely by personal bias in denying Plaintiff her right to a grievance hearing The intracorporate conspiracy doctrine also does not apply when a Defendant acts out of personal bias because “the interests of the corporation would have played no part in the employees’ collective action, so the action could not have been taken within the scope of employment”. Hartman, 4 F.3d at 470. Defendant Dean Throop was certainly motivated by personal bias in conspiring with the other individual Defendants to deprive Plaintiff of her right to a grievance hearing against Defendant Dean Throop. [Dkt. #149-153]. Further, taking the facts in the light most favorable to Plaintiff, the “corporation” (UWP) would have no interest in denying Plaintiff her right to a grievance hearing because the University would not be served by having a factually inaccurate and discriminatory Letter of Direction in the personnel file of one of its employees or Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 10 of 20 8 by allowing one of its employees to make shocking and defamatory claims about another employee. [Dkt. #10, par. 128-136, 163-166]. The actions of the individual Defendants in denying Plaintiff her right to a grievance hearing to challenge the Letter of Direction and to hold Ms. Rice responsible for her outrageous claims are directly antithetical to the interests of the corporation and thus, are outside the scope of their employment and are not protected by the intracorporate conspiracy doctrine. See Hartman, 4 F.3d at 470. c. The individual Defendants’ actions in denying Plaintiff her right to a grievance hearing were part of a “broader discriminatory pattern” at UWP that “permeated the ranks of [UWP’s] employees”1 The Seventh Circuit has held that the intracorporate conspiracy doctrine may not apply in cases where the conspiracy “was part of some broader discriminatory pattern” or that the conspiracy “permeated the ranks of the organization’s employees”. Hartman, 4 F.3d at 470-71; see also Stenson v. Town of Cicero, 2005 U.S. Dist. LEXIS 48115, *21 (N.D. Ill., Mar. 15, 2005) (explaining that “the doctrine does not apply where there is a broad pattern of unconstitutional conduct that permeates the entity”). In her Amended Complaint, Plaintiff has alleged a series of discriminatory acts that were committed by co-workers, Deans, the Director of the Human Resources Department, and even the Chancellor. [Dkt. #10, par. 127-192]. These allegations, taken as true, bring the conspiracy to violate Plaintiff’s due process rights outside of the shield of the intracorporate conspiracy doctrine because Plaintiff has demonstrated that the conspiracy is one of a series of discriminatory acts committed by persons throughout the University ranks over a substantial period of time. See Hartman, 4 F.3d at 470-71; Stenson, 2005 U.S. Dist. LEXIS 48115 at *21. 1 Hartman v. Bd. of Trustees of Community College Dist. No. 508, Cook County, Ill., 4 F.3d 456, 470-71 (7th Cir., 1993) Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 11 of 20 9 E. The individual Defendants knowingly violated University rules, implemented pursuant to Wisconsin law, to deny Plaintiff her right to a grievance hearing and thus are not entitled to qualified immunity It is well-established that state law can bestow a right that state actors cannot then take away without due process of law. Swick v. City of Chicago, 11 F.3d 85, 86 (7th Cir., 1993); see also Powell v Fujimoto, 119 Fed. Appx. 803, *5-6 (7th, 2004). The individual Defendants are responsible for knowing that principle of law. As stated above, Plaintiff sought her state-given, protected right to a grievance hearing (see supra, IA). The individual Defendants’ decision to deny the Plaintiff a right that is so clearly delineated in the University’s rules and policies [Dkt. #10, par. 123] can only be described as “plainly incompetent” or a “knowing[] violat[ion] of the law” Upton v. Thompson, 930 F.2d 1209, 1212 (7th Cir., 1991). As Plaintiff has alleged that Defendants knew that their denial of Plaintiff’s right to a grievance hearing violated Plaintiff’s procedural due process rights, the individual Defendants cannot hide behind qualified immunity. [Dkt. #10, par. 146]. Further, as discussed above, the knowing violation of the University’s rules and polices that they were tasked with enforcing (see supra, IC2) cannot be characterized as the Defendants performing duties within their discretionary authority or “perform[ing] their duties reasonably”. Pearson v. Callahan, 555 U.S. 223, 231 (2009); see also Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir., 2000). At this stage,2 the Defendants are not entitled to qualified immunity. 2 Although qualified immunity can be the basis of a Motion to Dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), complaints are "generally not dismissed under Rule 12(b)(6) on qualified immunity grounds”. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 12 of 20 10 II. Count II - Retaliation Pursuant to Title VII and Count III - Hostile Work Environment Pursuant to Title VII A. Counts II and III are timely pursuant to Seventh Circuit precedent On October 14, 2016, the EEOC issued a right-to-sue letter for the allegations on which Counts II and III are based. [Dkt. #10, par. 193-195]. It is well-established in this Circuit that “unless proven otherwise, the receipt date is presumed to be five days from the mailing date”. Loyd v. Sullivan, 882 F.2d 218, 218 (7th Cir., 1989); see also Avina v. Capsonic Group, LLC, 2013 U.S. Dist. LEXIS 41833, *4 (N.D. Ill., Mar. 25, 2013). As the Defendants concede, the complaint was filed within 95 days of the issuance of the right-to-sue letter. [Dkt. #16, p. 15]. Counts II and III, and the allegations upon which they are based, are therefore timely brought. See Loyd, 882 F.2d at 218; Avina, 2013 U.S. Dist. LEXIS 41833 at *4.3 B. Issue preclusion does not bar the essential allegations in her Amended Complaint and Defendants have not stated the relief they are seeking Defendants’ half-baked argument regarding issue preclusion should be wholly disregarded as it completely ignores Plaintiff’s well-pleaded Complaint and fails to seek specific relief from the Court, rendering it impossible for Plaintiff to actually respond. Rather, Defendant makes a factually inaccurate assertion that “most of the Complaint’s allegations detail matters that Burton litigated before this court in case no. 14-CV-274” [Dkt. #16, p. 15] and then fails to specify for this Court (or for Plaintiff’s response) what relief Defendants seek; for example, are Defendants 3 Further, although not alleged in the Amended Complaint and therefore not before the Court at this point, Plaintiff believes she actually received the right-to-sue letter on or around October 17, 2016. This would make the 90-day statute of limitations run on Sunday, January 15, 2017. Pursuant to Fed. R. Civ. Pro. 6(1)(C), the statute of limitations cannot run on a Sunday. Monday, January 16, 2017 was Martin Luther King Jr.’s birthday, a federal holiday; Fed. R. Civ. Pro. 6(6)(A) states that MLK day is a federal holiday and Fed. R. Civ. Pro. 6(1)(C) states that the statute of limitations cannot run on a federal holiday. Thus, the filing date of January 17, 2017 is proper. Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 13 of 20 11 asking that certain paragraphs be stricken? If so, which? Plaintiff cannot properly respond as Defendants have failed to lay out the sought relief. Further, in addition to Defendants’ assertion that “most of the Complaint’s allegations detail matters that Burton [previously] litigated before this court” being factually incorrect as Plaintiff alleges almost 100 paragraphs’ worth of activity that give rise to this lawsuit, the statement trivializes the extensive harassment and retaliation to which Plaintiff has been subjected that is detailed in those almost 100 paragraphs. [Dkt. #10, par. 111-196]. Simply because Plaintiff unsuccessfully prosecuted a lawsuit based on those perceived discriminatory actions does not mean that Plaintiff was not subjected to discrimination, retaliation, and harassment since that time. Nor does the fact that the Defendant Board prevailed in the previous lawsuit mean that the subsequent retaliation and harassment of which Plaintiff has been a victim, based upon protected activities such as prosecuting the previous lawsuit, mean that the Defendant Board is not liable for those actions. Plaintiff is not re-litigating the factual or legal issues raised in her prior lawsuit that have already been decided. Plaintiff’s three causes of action derive, or are directly related to, paragraphs 111 through 196, actions which did not form the basis of the original lawsuit. [Dkt. #10, p. 20-23]. The facts of the original lawsuit are included in the Amended Complaint for contextual purposes only and not for the purposes of re-litigation. Plaintiff has clearly delineated which paragraphs detail the actions of which she is complaining and there is no reason why the Court should not take the other paragraphs into account for purposes of background, context, and understanding. See Hopkins v. Bd. Of Educ. Of Chi., 73 F. Supp. 3d 974, 984 (N.D. Ill., 2014) (explaining that the Court will consider events that were the subject matter of a prior settlement agreement “as background information…to the extent necessary to understand” the Plaintiff’s claims). Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 14 of 20 12 Defendants can point to no authority that precludes the Court from doing so or that says that each and every paragraph in a Complaint must go 100% to the claims brought forth in the Complaint. Defendants’ arguments should therefore be disregarded as Plaintiff is not attempting to re-litigate the original lawsuit. C. Plaintiff adequately pled a claim for retaliation pursuant to Title VII 1. Plaintiff alleged materially adverse employment action Plaintiff first notes that Defendants assert that only the three categories laid out in O’Neal are available to constitute a materially adverse action. [Dkt. #16, p. 19]. This, however, is an untrue statement of law as the Seventh Circuit has stated since O’Neal “in a discrimination case, a materially adverse employment action is one which visits upon a plaintiff ‘a significant change in employment status.’” Boss v. Castro, 816 F.3d 910, 918 (7th Cir., 2016) (quoting Andrews v. CBOCS West, Inc., 743 F.3d 230, 235 (7th Cir. 2014)); see also Silverman v. Bd. Of Edu. Of Chi., 637 F.3d 729, 740 (7th Cir., 2011) (stating that “in a retaliation case, an adverse action is one that a reasonable employee would find to be materially adverse such that the employee would be dissuaded from engaging in the protected activity”). By relying on this older, incomplete principle of law, Defendants make meritless and pointless arguments. The Shields LOD placed in Plaintiff’s personnel file is of course a materially adverse employment action. [Dkt. #10, par. 182-192]. As previously decided by this Court in the original lawsuit, “a formal letter of direction and a request for discipline could certainly dissuade an employee from filing a charge of discrimination or a federal lawsuit”. [14-cv-274, Dkt. #90, p. 23 (quoting Silverman, 637 F.3d at 740)]. For similar reasons, the Complaints and Grievances’ Commission’s refusal to grant Plaintiff her protected right to a grievance hearing, which she Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 15 of 20 13 requested for the sole purpose of having the LOD removed from her personnel file, is also a materially adverse employment action. [Dkt. #10, par. 128-143]. See Silverman, 637 F.3d at 740. Plaintiff also suffered a materially adverse employment action in being removed from a grant project. [Dkt. #10, par. 169-170]. Because Plaintiff was therefore excluded from receiving extra pay for her work on anything in relation to the grant’s goals and/or activities [Dkt. #10, par. 174], Plaintiff’s “compensation, fringe benefits, or other financial terms of employment” were diminished, making this a materially adverse employment action. O’Neal v. City of Chicago. 392 F.3d 909, 911 (7th Cir., 2004). Defendants failed to even address this materially adverse employment action, rendering their argument null. 2. Plaintiff alleged a causal connection between the materially adverse action and the protected activities Defendant Board, Plaintiff’s employer,4 knew that Plaintiff engaged in protected activity by filing the previous lawsuit. [Dkt. #10, par., 109-110]. The Defendant Board also knew that she requested grievance hearings, attempted to get the LOD removed from her personnel file, and reported harassment to persons such as Defendant Strobl. [Dkt. #10, par. 134, 154, 159-160, 163]. As a result of Plaintiff engaging in protected activities, the Defendant Board retaliated against her. The Commission Members refused Plaintiff’s right to grievance hearings. [Dkt. #10, par. 139, 168]. Defendant Strobl, who received reports of harassment from Plaintiff and sat on the Commission, gave increased scrutiny to Plaintiff and removed Plaintiff from the grant. [Dkt. #10, 4 Title VII claims are brought against the Defendant Board, not against individual Defendants. [Dkt. #10, p. 21-22]. Thus, Defendants’ notation that “Burton does not allege that the individual defendants who refused to hear her grievance in 2016 even had knowledge of her lawsuit or prior EEOC complaint” is wholly irrelevant. [Dkt. #16, p. 21-22]. Taking the facts alleged in the light most favorable to Plaintiff and drawing all reasonable inferences therefrom, Plaintiff has alleged that her employer had notice of her protected activities and that her employer undertook retaliatory actions against Plaintiff. [Dkt. #16, par. 76, 79, 93, 95, 97-101, 103-104, 106-110, 113, 121, 134-136, 138-139, 154-158, 160-192]. Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 16 of 20 14 159-161, 169-174]. Chancellor Shields send a LOD and placed it in Plaintiff’s personnel file. [Dkt. #10, par. 185-192]. Plaintiff undertook her protected activities in April and May of 2016 (which is also shortly after the original lawsuit ended)5; each of these adverse actions occurred within a short amount of time thereafter. [Dkt. #10, par. 126, 128, 154, 160, 163]. These allegations give rise to the reasonable inference of a causal connection at the Complaint stage. 3. Any insinuation that Plaintiff engaged in “bad behavior” is improper and should be disregarded It is wholly improper and inflammatory for Defendants to claim, without any support or follow-up, that Plaintiff is using prior protected activity as a “license to engage in bad behavior thereafter with impunity”. [Dkt. #16, par. 23]. That sort of argument may be relevant or proper in a Motion for Summary Judgment, where the Defendant can actually bring to the Court’s attention so-called “bad behavior” on the part of Plaintiff. However, at the Motion to Dismiss stage, where the Court is looking only at Plaintiff’s Complaint (wherein Plaintiff certainly did not allege that she engaged in “bad behavior”), taking all of the facts alleged therein as true and perceived in the light most favorable to the Plaintiff. See Bell Atl. Corp. v. Twombley, 550 U.S. 544, 572 (2007); Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir., 2013). D. Under the totality of the circumstances, Plaintiff was subjected to a hostile work environment pursuant to Title VII By taking the factual allegations in the Amended Complaint as true and drawing all reasonable inferences in favor of the Plaintiff, Plaintiff was retaliated against by various co- workers such that it led to a hostile work environment.6 Plaintiff was in a hostile work environment 5 There is no reason why the fact of the original lawsuit should only be viewed as a protected activity on the date that it was filed. The fact of continued litigation should be a continued protected activity up until the date that the suit ended. 6 To the extent that Defendants claim that it is unclear, Plaintiff alleges retaliatory harassment that caused a hostile work environment. Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 17 of 20 15 because of the accumulating severe and pervasive acts of harassments from different individuals, which as a result, altered the conditions of her employment and created a hostile working environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998). A reasonable person in Plaintiff’s position would consider the said work environment as a hostile one and as well as the Plaintiff herself finds it to be hostile. See Smith v. Ne. Ill. Univ., 388 F.3d 559, 566 (7th Cir. 2004). As described above, Plaintiff’s work environment shifted for the worse after she engaged in protected activities. Upon the Court granting summary judgment for the Defendants, the Plaintiff was still subjected to retaliation based upon her engagement of protected activities, e.g., the filing of the second EEOC complaint, requesting multiple grievance hearings, and filing a complaint against a co-worker. [Dkt. #10; par. 126-96]. Plaintiff filed two simultaneous request for grievances: one for the removal of the Letter of Direction from Defendant Dean Throop and the other for the defamatory statements made by Deborah Rice in front of other faculty and students. [Dkt. #10; par. 128-33 and 163-68]. The Board had knowledge that the Letter of Direction from Defendant Dean Throop contained allegations of Plaintiff’s engagement in protected activities and false factual allegations. [Dkt. #10; par. 135-36]. The Board also had notice that Deborah Rice made a false statement that caused Plaintiff to be humiliated by stating the Plaintiff had a mental illness in front of other faculty members and students. [Dkt. #10; par. 164-66]. Although Plaintiff made the request for a grievance for both instances, the Board failed to take any action, which allowed the falsity of the Letter of Direction unaddressed and Deborah Rice’ act undisciplined. [Dkt. #10; par. 137-39 and 168]. Additionally, Plaintiff was reprimanded by Chancellor Shields for seeking a grievance for the Letter of Direction from Defendant Dean Throop and the false statement made by Deborah Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 18 of 20 16 Rice. [Dkt. #10; par. 185-96]. As a result, Chancellor Shields wrote a Letter of Direction. [Id.]. To add insult to injury, Plaintiff was also subjected to harassment by Dr. Dalecki, who simulated the act of pulling a trigger of a gun towards the Plaintiff with the intention of making a threat to the Plaintiff. [Dkt. #10; par. 176-84]. The incident of report by the Plaintiff and was made known to the Defendant Board; however, no actions have been taken for the purpose of disciplining Dr. Dalecki. [Dkt. #10; par. 183]. Last but not least, Plaintiff was removed as key personnel from the grant project from the Criminal Justice Department, which caused an unreasonable interference of her employment because it was a lost source of compensation and diminished financial terms of her employment. [Dkt. #10; par. 170-76]. Although each individual act, on its own, may not constitute a hostile work environment, considering the totality of the circumstances, it is clear that Plaintiff was subjected to a hostile work environment. See Reich v. Software One, Inc., No. 12-C-0746, 2014 U.S. Dist. LEXIS 120336, at *33 (E.D. Wis. Aug. 28, 2014). A reasonable person in the same position of the Plaintiff would feel that the work environment was hostile because of the severity and pervasiveness of the accumulated harassments. Plaintiff did perceive it to be so, and thus brought this action. III. Should this Court Find that any of Plaintiff’s Claims are not Adequately Pled, Plaintiff Requests Leave of this Court to Correspondingly Amend her Complaint and to Add Additional Allegations and Claims Should this Court find that any of Plaintiff’s claims are adequately pled, Plaintiff requests leave of this Court to correspondingly amend her Complaint. Additionally, and/or alternatively, Plaintiff requests leave of this Court to add additional allegations and claims to her Complaint as additional actions, including the commencement of termination proceedings, have begun since Plaintiff began this action. Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 19 of 20 17 CONCLUSION For the reasons stated above, Plaintiff asks that this Court deny Defendants’ Motion in its entirety. Respectfully submitted, By: s/Kara Amouyal__________ One of the attorneys for the Plaintiff Case: 3:17-cv-00036-jdp Document #: 19 Filed: 05/22/17 Page 20 of 20