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

Filing 106

ORDER denying 99 Motion for Reconsideration. Signed by District Judge James D. Peterson on 6/21/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

SABINA BURTON,

v.

Plaintiff,
OPINION & ORDER

BOARD OF REGENTS OF THE UNIVERSITY
OF WISCONSIN SYSTEM,
THOMAS CAYWOOD, ELIZABETH THROOP, and
MICHAEL DALECKI,

14-cv-274-jdp

Defendants.
Plaintiff Sabina Burton brought this suit to challenge what she perceived to be
discrimination and retaliation from colleagues and administrators at the University of
Wisconsin—Platteville (UWP), where Burton is a tenured professor. Eight months into the
case, Burton fired her counsel. Dkt. 12. She found new counsel, who vigorously litigated this
case through discovery and dispositive motions.
I granted defendants’ motion for summary judgment after concluding that Burton
would not be able to prove critical elements of her claims at trial. Dkt. 90. In the wake of
that ruling, Burton insisted on a course of action that her counsel would not follow. Dkt. 96,
¶ 2. I granted counsel’s motion to withdraw. Dkt. 97.
Burton has now filed a pro se motion for reconsideration of my summary judgment
decision. Dkt. 99. She contends that her former counsel did not allow her to proofread or
edit the brief in opposition to defendants’ motion for summary judgment, and that, as a
result, counsel failed to dispute facts that Burton instructed them to dispute with evidence
that she provided. Dkt. 100, ¶ 2. Burton has assembled this evidence and filed corrections
and updates to several documents that her former counsel submitted in opposition to

summary judgment. See Dkt. 98; Dkt. 100; Dkt. 101; Dkt. 102. Through these filings,
Burton purports to demonstrate genuine disputes of material fact that require a trial.
After reviewing Burton’s submissions, I conclude that she is not entitled to relief
under Federal Rule of Civil Procedure 59(e). I will deny her motion for reconsideration.

BACKGROUND
I recounted the material facts of the case in my opinion on defendants’ motion for
summary judgment. Dkt. 90. Although Burton takes issue with some of the finer points, the
basic facts have not changed. I will summarize those facts here, and I will discuss Burton’s
recently submitted materials in the analysis section of this opinion.
Burton began working in the criminal justice department at UWP in 2009, and she
was promoted to associate professor in 2012. She later received tenure, effective for the
2013-14 academic year. The defendants in this case include the Board of Regents, Thomas
Caywood (the former chair of Burton’s department), Michael Dalecki (who replaced
Caywood as chair of the department), and Elizabeth Throop (the dean of the college that
included Burton’s department).
The first of two critical events in this case occurred in October 2012. One of Burton’s
colleagues upset a student during a lecture on breach experiments. The student sought out
Burton to talk about the incident, and Burton emailed Throop to alert her that the student
had been harassed. In the following months, Burton experienced what she perceived to be
unwarranted public criticism for the way that she had handled the student’s complaint.
According to Burton, Caywood was upset that she had taken the issue to the dean instead of
him. Caywood became bitter toward Burton and was less than collegial on several occasions.

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At the time that the student incident occurred, Burton was developing a new
cybersecurity curriculum. In the course of developing the curriculum, Burton secured a grant
from AT&T. But Throop and Caywood took issue with the press release that Burton had
approved to announce the donation. In their opinion, the press release incorrectly reported
the status of the new curriculum as more developed than it really was. Despite Throop and
Caywood’s concerns, AT&T was able to correct the press release in time to present Burton
with a check at a public ceremony in January 2013. About the same time, Throop and
Caywood also identified other issues with how Burton was portraying the status of the
curriculum to the public. Burton contends that Throop and Caywood’s criticisms and their
sudden drop in support were in retaliation for Burton assisting the student.
The second critical event in this case occurred in August 2013, when Burton filed a
charge of discrimination with the Wisconsin Department of Workforce Development—Equal
Rights Division (ERD). Burton charged that: (1) Caywood had discriminated against her
because she was a woman and retaliated against her for reporting the student harassment;
(2) Throop and the human resources director had discriminated against her; (3) Throop had
defamed her; and (4) the university had been deliberately indifferent to her grievances.
After Burton filed her charge with the ERD, she continued to experience what she
perceived to be hostile treatment by her colleagues and supervisors. Dalecki—who had
replaced Caywood as department chair by that point—repeatedly encouraged her to drop the
charge, and he expressed disappointment or told Burton to “get over it” each time that she
refused to do so. Dalecki also implied that Burton was hurting her future opportunities to
pursue administrative positions at UWP by continuing with the charge and later lawsuit.
Burton and Dalecki had several disagreements throughout the 2013-14 academic year. The

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disagreements concerned committee appointments, personnel changes, issues with graduate
students, and department management. Burton contends that Dalecki’s actions were in
retaliation for the ERD charge and this lawsuit.
Burton’s relationship with Throop deteriorated as well. In October 2014, Throop
wrote Burton a letter of direction, identifying seven events that Throop described as showing
“a consistent pattern of unprofessional and inappropriate behavior.” Dkt. 37-15, at 5. Burton
responded to the letter by disagreeing with Throop’s summary of the relevant facts and by
flatly refusing to accept any of Throop’s directions. Given Burton’s refusal to cooperate,
Throop filed a complaint with the chancellor on January 5, 2015, asking him to write Burton
a formal letter of reprimand that would be placed in her personnel file.
Burton pursued several grievances to address her concerns with UWP administrators.
When those efforts proved unsuccessful, Burton filed suit in this court. I granted defendants’
motion summary judgment, which disposed of the entire case.

ANALYSIS
Burton moves for reconsideration of my summary judgment decision, pursuant to
Rule 59(e). Dkt. 99. She contends that her corrections and additions to the materials that
her former counsel submitted demonstrate disputes of material fact that require a trial.
“A Rule 59(e) motion will be successful only where the movant clearly establishes:
(1) that the court committed a manifest error of law or fact, or (2) that newly discovered
evidence precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954
(7th Cir. 2013) (citations and internal quotation marks omitted). But Rule 59(e) is not “a
vehicle for a party to undo its own procedural failures, and it certainly does not allow a party

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to introduce new evidence or advance arguments that could and should have been presented
to the district court prior to the judgment.” Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.
1996). Because Burton does not identify a manifest error of law or fact, and because she does
not present newly discovered evidence, Burton is not entitled to relief under Rule 59(e). And
even if I were to reconsider my summary judgment decision based on the evidence that
Burton now identifies, I would reach the same conclusions.
The first type of motion under Rule 59(e) requires the movant to show that a court
committed a manifest error of law or fact. But “[a] ‘manifest error’ is not demonstrated by
the disappointment of the losing party. It is the wholesale disregard, misapplication, or failure
to recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (citations and internal quotation marks omitted). Burton does not identify controlling
precedent that I failed to apply. 1 Burton also does not argue that I misunderstood the facts of
the case as defendants and her former counsel presented them. Thus, Burton is not actually
contending that I committed a manifest error of law or fact. Instead, she catalogues
additional evidence that was not presented at summary judgment and asks me to revisit my
earlier decisions with this evidence in mind. See Dkt. 103, at 1 (“Please review my attached
findings of facts, corrections to Defendants’ Proposed Findings of Fact and my corrections to
Plaintiff’s Brief in Opposition to Summary Judgment.”). The mere fact that Burton has
additional evidence and arguments for me to consider does not mean that I committed a
manifest error of law or fact in deciding defendants’ motion for summary judgment.

1

This court is within the Seventh Circuit, so I must adhere to decisions from that court of
appeals. Many of the cases that Burton cites in her brief are from other circuits, and they are
persuasive precedent only, not binding.

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As for the second type of Rule 59(e) motion, Burton has not presented “newly
discovered evidence.” Despite the circumstances that led Burton to file her motion, none of
the evidence that she presents is “new”—it was all available to her and to her attorneys when
they opposed defendants’ motion for summary judgment. “[M]otions under Rule 59(e)
cannot be used to present evidence that could have been presented before judgment was
entered.” Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008). Burton hired the attorneys
who represented her in this case; they were not forced upon her. Those attorneys presented
Burton’s case on her behalf, and she cannot pursue relief under Rule 59(e) just because she
disagrees with their strategic decisions. It is too late for that. “A party seeking to defeat a
motion for summary judgment is required to wheel out all its artillery to defeat it. . . .
Reconsideration is not an appropriate forum for rehashing previously rejected arguments or
arguing matters that could have been heard during the pendency of the previous motion.
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).
Burton has not identified a manifest error of law or fact that I committed in granting
defendants’ motion for summary judgment, nor has she identified newly discovered evidence
that changes the result in this case. I will therefore deny her motion for reconsideration.
Even if I were to review my summary judgment opinion in light of the evidence and
arguments that Burton presents now, I would still conclude that defendants are entitled to
judgment as a matter of law. Burton alleged two retaliation claims: one under Title IX of the
Education Amendments of 1972, and one under Title VII of the Civil Rights Act of 1964.
Both claims required Burton to prove the same elements. Milligan v. Bd. of Trs. of S. Ill. Univ.,
686 F.3d 378, 388 (7th Cir. 2012). To withstand summary judgment, Burton needed to
adduce evidence that: (1) she engaged in protected activity; (2) defendants took an adverse

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action against her; and (3) there was a causal connection between her protected activity and
the adverse action. Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 508 (7th Cir. 2014).
For Burton’s Title IX claim, I assumed without deciding that Burton engaged in
protected activity when she assisted the student who complained about harassment. Dkt. 90,
at 13. But I concluded that Burton had failed to adduce evidence of a materially adverse
action that defendants took against her. This element required Burton to demonstrate an
action or series of actions “that a reasonable employee would find to be materially adverse
such that the employee would be dissuaded from engaging in the protected activity.”
Silverman v. Bd. of Educ. of Chi., 637 F.3d 729, 740 (7th Cir. 2011) (citations and internal
quotation marks omitted). Burton identified two categories of materially adverse actions:
(1) Caywood publically criticized her and was not collegial toward her; and (2) Caywood and
Throop withdrew their support of her efforts to develop a cybercrime curriculum. I concluded
that these actions did not qualify as materially adverse.
In moving for reconsideration, Burton contends that there were other instances of
Caywood being rude or unfriendly toward her. See Dkt. 103, at 5-7. 2 For example, two days
after the student incident occurred, Caywood did not reply to a morning greeting from
Burton, and he gave her a stern look when he saw her later that day. On a different occasion,
Caywood did not respond to an email from Burton informing him about a news crew coming
to interview her. Throop later commented that Burton should have informed the college
2

Burton does not identify record evidence to support most of her factual assertions. See, e.g.,
Dkt. 102 (Burton’s responses to defendants’ proposed findings of fact) and Dkt. 103, at 5-22
(Burton’s list of adverse actions that she suffered). This court requires parties to cite directly
to record evidence to support their proposed findings of fact and their responses to an
opponent’s proposed findings of fact. Dkt. 9, at 12-15. Because Burton failed to comply with
these procedures, I would likely disregard her factual assertions, which would further support
my conclusion that she has failed to create a genuine dispute of material fact.

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about the event. Caywood also wrote a harsh email to Burton (and cc’d Throop). The email
came shortly after Burton had learned that her father was terminally ill. According to Burton,
Caywood’s timing was deliberate: he intended for Burton to receive the email during a
troubling time (but Burton has only speculation to support this assertion).
At summary judgment, I concluded that Burton had adduced evidence of only “petty
slights or minor annoyances that often take place at work and that all employees experience,”
which do not qualify as materially adverse actions. Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006). Burton’s motion for reconsideration presents more of the same:
Caywood was cold toward her and his reprimands were embarrassing. These are not adverse
actions that give rise to a retaliation claim in federal court. Sweeney v. West, 149 F.3d 550,
556 (7th Cir. 1998) (“Absent some tangible job consequence accompanying [unfair or
undeserved] reprimands, we decline to broaden the definition of adverse employment action
to include them.”).
Burton characterizes Throop and Caywood’s responses to the AT&T press release as
demonstrating a sudden withdrawal of support for the curriculum that she was developing.
But Throop worked with an AT&T representative to promptly correct the issue with the
press release, and Burton received the donation at a public ceremony. Moreover, Throop and
Caywood encouraged Burton to continue developing the curriculum, but they urged her to
comply with UWP’s procedures for doing so. See, e.g., Dkt. 53-4 and Dkt. 37-5, at 1. Their
disapproval of the AT&T press release was not a materially adverse action.
For Burton’s Title VII claim, I concluded that she had engaged in protected activity
by filing a charge of discrimination. Dkt. 90, at 21. I also concluded that although Dalecki’s
pressure to drop the charge and lawsuit did not qualify as an adverse action, Throop’s letter

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of direction and formal complaint to the chancellor did qualify. But Burton still could not
succeed on her Title VII claim because she had not adduced evidence of a causal connection
between her protected activity and Throop’s actions. Burton’s motion for reconsideration
challenges my conclusion that Dalecki’s actions did not qualify as materially adverse and my
conclusion that there was no evidence of a causal connection.
Burton had several disagreements with Dalecki, but I have already concluded that
these did not qualify as materially adverse actions. In her motion for reconsideration, Burton
identifies a few other petty slights that she endured. For example, Dalecki refused to put
“Dr.” in front of Burton’s name on a list of department email addresses, and he “corrected
and humiliated [her] in a department email for [her] response to a very devastating”
evaluation of the department (Burton later apologized to Dalecki for the tone of that
response). Dkt. 103, at 9, 11. These slights and personality conflicts do not qualify as
materially adverse actions for purposes of a Title VII retaliation claim.
Burton’s motion for reconsideration also recasts much of the evidence concerning
Dalecki’s threats after she filed a charge of discrimination and this lawsuit. But Burton did
not dispute at summary judgment that these threats were empty: Dalecki never followed
through on them. “[I]t is well established that unfulfilled threats that result in no material
harm cannot be considered an adverse employment action under Title VII.” Hottenroth v.
Village of Slinger, 388 F.3d 1015, 1030 (7th Cir. 2004) (citing Ajayi v. Aramark Bus. Servs.,
Inc., 336 F.3d 520, 531 (7th Cir. 2003)). Now, in moving for reconsideration, Burton adds a
few factual allegations. Dalecki assigned a newly hired professor to manage one of Burton’s
projects, Dkt. 103, at 11, and he did not assign Burton to several search committees, id. at
15. From her submissions, I infer that Burton wanted these assignments. But Burton has not

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explained how, or adduced evidence that, she was actually injured by not receiving them and
how that injury would deter a reasonable employee from filing a charge of discrimination. At
this point, Burton has not identified anything more than her own personal disappointment
with Dalecki’s decisions, which does not qualify as a materially adverse action.
This leaves Throop’s letter of direction and formal disciplinary complaint. At
summary judgment, I concluded that Burton had failed to adduce evidence of a causal
connection between her protected activity and Throop’s adverse actions. Burton sought to
prove causation through pretext, by showing that Throop’s reasons for disciplining her were
so obviously false that they must have been a cover for retaliation. Burton takes the same
approach in her motion for reconsideration. Dkt. 103, at 17 (“I believed Throop’s
accusations in the Letter of Direction to be false and in retaliation of a protected activity, or
multiple protected activities. I have evidence to prove her accusations as false but I was never
given a chance to present my side of the story.”).
Federal courts “do not evaluate whether the stated reason [for an adverse action] was
inaccurate or unfair.” Harden v. Marion Cty. Sheriff’s Dep’t, 799 F.3d 857, 864 (7th Cir. 2015)
(citations and internal quotation marks omitted). Thus, Burton’s belief that Throop’s
accusations were false is irrelevant. The issue is not whether Burton can prove that Throop
was wrong to issue her a letter of direction. Instead, Burton must identify record evidence
demonstrating that Throop did not honestly believe the reasons that she gave for disciplining
Burton. In my summary judgment opinion, I concluded that Throop had at least some factual
basis for her decisions because she cited to specific events in her letter of direction. Burton
obviously disagrees with Throop’s description of the underlying events and with how Throop
responded to them. But a federal court is not the forum in which to present these types of

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disputes. I will not second guess internal business and personnel decisions, absent some
evidence that the employer’s decision was “completely unreasonable.” Hobgood v. Ill. Gaming
Bd., 731 F.3d 635, 646 (7th Cir. 2013). Burton failed to meet this standard at summary
judgment, and her recent submissions do not change that.

CONCLUSION
Burton does not contend that I committed a manifest error of law or fact, and she
does not present newly discovered evidence that would change my earlier decisions. Burton
simply disagrees with the way in which her former counsel presented this case. But this is not
a proper reason for seeking reconsideration under Rule 59(e). I must therefore deny her
motion. And even if I were to consider the evidence that Burton discusses in her recent
submissions, I would still conclude that defendants are entitled to judgment as a matter of
law on Burton’s retaliation claims.

ORDER
IT IS ORDERED that plaintiff Sabina Burton’s motion for reconsideration, Dkt. 99,
is DENIED.
Entered June 21, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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