Allen-Noll, Taysheedra v. Madison Area Technical College et al
Filing
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OPINION AND ORDER granting in part and denying in part 16 Motion to Dismiss. Defendants Jack Daniels and Terrance Webb are dismissed. Signed by Magistrate Judge Stephen L. Crocker on 12/28/18. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TAYSHEEDRA D. ALLEN-NOLL,
Plaintiff,
v.
OPINION AND ORDER
18-cv-216-slc
MADISON AREA TECHNICAL COLLEGE,
et al.,
Defendants.
In this civil action brought under federal and state law, plaintiff Taysheedra Allen-Noll
alleges that she was harassed, subject to different terms and conditions of employment, and fired
from her position as a nursing instructor with defendant Madison Area Technical College
because of her race and because she complained about racial discrimination and harassment, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the due process and
equal protection clauses of the Fifth and Fourteenth Amendments (as enforced through 42
U.S.C. § 1983), and Wisconsin state defamation, breach of contract, and wrongful discharge
law. Before the court is defendants’ motion to dismiss Allen-Noll’s amended complaint on
several grounds, including statute of limitations, insufficient allegations of discriminatory intent,
individual liability, failure to state a constitutional claim, and preemption of the state law tort
claims. Dkt. 16.
For the reasons stated below, I am granting the motion in part and denying it in part.
I am dismissing Allen-Noll’s Title VII claim against the individual defendants; her § 1981 claim
against defendants Webb, Daniels, and Stoner; her equal protection and due process claims
against defendants MATC, the board, Webb, and Daniels; her equal protection claim against
Stoner; and all of her state law tort claims. I am denying the motion with respect to the Title
VII claim against MATC and the board; the § 1981 claim against MATC, the board, and Lausch;
the equal protection claim against Lausch; and the due process claim against Lausch and Stoner.
Although the parties’ briefs contain arguments about the facts and how they should be
construed or characterized, at the dismissal stage, the court must accept as true all well-pled
facts in the complaint and must draw all reasonable inferences in favor of the non-moving
party. Reger Development, LLC v. National City Bank, 592 F.3d 759, 763 (7th Cir. 2010).
Allen-Noll alleges the following facts in her amended complaint:
FACTS ALLEGED
I. Background and the Parties
Plaintiff Taysheedra Allen-Noll is an African American woman who resides in Deforest,
Wisconsin. She was first employed by defendant Madison Area Technical College (MATC) as
a part-time nursing instructor in the Certified Nursing Assistant Program in January 2009. In
December 2009, MATC hired her as an “emergency hire” and then promoted her to a full-time
instructor position in the Practical Nursing program in 2010. She was the only African
American instructor out of 64 instructors in the program. Allen-Noll remained in that position
until May 14, 2014, when MATC allegedly refused to renew her contract because of her race
and in retaliation for complaining about race discrimination and harassment.
Defendant MATC is a state employer and member of the Wisconsin Technical College
System. Wis. Stats. Ch. 38. It is governed by defendant Board of Madison Area Technical
College. At all times relevant to this lawsuit, defendant Mark Lausch was Dean of the Center
for Health and Safety Education and Allen-Noll’s immediate supervisor, defendant Jack Daniels
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was the president of MATC, defendant Terrance Webb was the provost, and defendant Carolyn
Stoner was chair of the board.
II. 2010-2011 School Year
A. Lausch and Co-workers Criticize Allen-Noll’s Teaching
Beginning in July 2010, Allen-Noll’s Caucasian colleagues began using student class time
to spread “hostile rumors” about her and make “slanderous” statements that she did not
adequately prepare her students to pass their licensing exams. Allen-Noll believes that her
colleagues acted this way because she is black. Dean Lausch knew about and participated in the
harassment.
On February 17, 2011, Lausch and fellow instructor Di Polly met with students in AllenNoll’s class to solicit and encourage complaints about Allen-Noll. After an African American
student disagreed with the Caucasian students in the class and convinced some of them to admit
that Allen-Noll had been a good instructor, some of the Caucasian students called the AfricanAmerican student a “crazy bitch and psychotic tramp.” When Tracy Ahern, another instructor,
learned about the African American student’s support of Allen-Noll, she had campus security
seize the student in Allen-Noll’s classroom the next day and remove her from the campus.
Lausch asked Allen-Noll why campus security was in her classroom but did not ask Ahern about
the incident or discipline Ahern in any way.
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B. Removal from Clinical Teaching Site
On May 10, 2011, Allen-Noll was removed from the St. Mary’s clinical teaching site
following a complaint from the director there, Barbara Hauge. Allen-Noll considered the
complaint suspicious because Hauge is a friend of one of the MATC instructors (Ms. Gorder)
who had been harassing her and because Hauge made the complaint three months after AllenNoll finished at St. Mary’s. Allen-Noll later learned that Gorder had sent Lausch an email in
April 2011, making disparaging comments about Allen-Noll’s performance and stating that she
had urged Hauge to file a complaint with Lausch.
C. Allen-Noll’s First Internal Complaint
On May 11, 2011, Allen-Noll filed an internal complaint with MATC’s human resources
department, alleging racial harassment and discrimination. On May 12, 2011, Lausch responded
to the complaint in an email to Dave Miller in human resources, stating that he found it hard
to believe that Allen-Noll’s colleagues would be making things up and that they believed that
Allen-Noll was doctoring student grades.
In a memorandum dated June 1, 2011, Dave Miller told Allen-Noll that Lausch did not
consider her removal from St. Mary’s “to be a disciplinary step in any way.” He also assured
Allen-Noll that Lausch knew that Ahern inappropriately discussed her opinion of Allen-Noll with
students and would put a stop to it. However, Lausch did not honor his promise and stop the
harassment. As far as Allen-Noll knew, no one disciplined or talked to either Gorder or Ahern.
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D. Continued Complaints Against Allen-Noll
Meanwhile, MATC staff made unfounded complaints to Lausch about Allen-Noll’s
performance. In a May 24, 2011 email to Lausch, Gorder stated that Allen-Noll, had not
demonstrated the open communication and coordination necessary to teach a particular
refresher course. On May 18, 2011, a Caucasian tutor filed a complaint on behalf of several
students after the semester exams, criticizing Allen-Noll’s teaching abilities. However, Lausch
told Allen-Noll that “all is well” and the tutor “was just happy that [he] heard her out.”
Allen-Noll was not disciplined for her behavior, performance, or any other employment
matters. In fact, in an email dated August 9, 2011, Lausch acknowledged to Allen-Noll’s new
mentor that she was doing a great job in class. Lausch also wrote in the email that “[h]er issue
is that the P.N. faculty simply do not like her. I cannot tell if it is race-related or simply
personality conflicts. I think it is a combination of Tay being young, energetic, and her race that
have alienated her from the faculty.” On December 20, 2011, Lausch again praised Allen-Noll’s
performance, writing that: “Attached is my ‘Faculty Professional Growth Review Administrative
Assessment’ form from my observation of your class last month. I thought you did an
outstanding job. . . . I am honored to be surrounded by such professional faculty members as
yourself.”
II. 2011-2012 School Year
A. Lausch Seeks to Avoid Renewing Allen-Noll’s Contract
Despite the his praise for Allen-Noll, Lausch was looking for a way to avoid renewing
Allen-Noll’s contract. On February 23, 2012, Miller in human resources sent an email to Lausch
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stating that “if we want to look at possible non-renewal, I need a listing of issues that have come
up with her, when, what we did about them, etc. Most important would be issues that you have
addressed with her prior to her bringing the harassment complaints to our attention.” Miller
emailed Lausch again five days later, stating that “we really need to focus on this part of it and
start building our case. . . My quick gut reaction says that those things would not be enough for
us to consider non-renewal AT THIS TIME (sic), but as part of building on, would be something
to work with.”
B. Performance Improvement Plan
On May 17, 2012, Lausch put Allen-Noll on a performance improvement plan (PIP),
which Allen-Noll characterizes in her amended complaint as unwarranted, “null and void,”
“bogus,” “defamatory,” and a breach of contract. (Dkt. 14 at 17-18). Although it is not entirely
clear from the allegations in the complaint, it appears that Lausch noted in the PIP that AllenNoll was a poor teacher, had violated “FERPA” (student privacy), failed to follow school
procedures, and would not complete work as assigned.
III. 2012-2013 School Year: Continued Harassment and PIP Renewal
On October 5, 2012, Lausch observed Allen-Noll’s performance and told her that she was
doing a “good job” in class. However, around November 3, 2012, Lausch sought input from a
counseling faculty member, Delisa Scott, about Allen-Noll’s pharmacology class and allegedly
learned from Scott that the class was “the most difficult theory class in nursing” and that AllenNoll “had no control over most of [her students’] concerns.” Although Lausch pondered in his
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response email to Scott that “I wonder if these are real issues for the students or if they were
indirectly complaining about Taysheedra,” Scott assured him in an email that “most of the
comments I heard were nothing new, and were heard long before Taysheedra was on board.”
Around November 29, 2012, fellow instructor Dennis Farber (who is Caucasian) began
spreading rumors that Allen-Noll was an incompetent instructor and horrible teacher and alluded
to her “pulling the race card” to save her job, presumably referring to Allen-Noll’s May 2011
complaint. Farber is a part-time instructor who never observed Allen-Noll in the classroom.
Also around this time, the MATC teachers’ union informed Lausch that a student had written
them about Farber’s statements, but Lausch did not take any action against Farber. However,
on December 17, 2012, Lausch issued Allen-Noll a “recap” PIP, which she alleges was baseless.
In an email to Lausch dated January 11, 2013, Farber explained his comments, stating
that students “consistently complain about their pharmacology course,” admitting that things
he hears would be considered rumors, and apologizing for discussions that students may have
construed “in a negative or attacking manner.” On March 19, 2013, Lausch noted in a written
observation that Allen-Noll’s teaching of pharmacology students was “well done!” Yet four days
earlier, Lausch learned via email that because Allen-Noll was not a probationary employee, she
could be terminated only if she was on a PIP and showing no improvement.
IV. 2013-2014 School Year
A. Allen-Noll Complains of Race Discrimination
On October 23, 2013, Lausch sent an email to Ahern asking her help in organizing a
meeting to “meet students to discuss and gather issues/concerns they were having with Ms.
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Allen.” On November 20, 2013, Allen-Noll filed her second internal complaint of racial
harassment and discrimination and pointed out that MATC had not yet addressed her May 11,
2011 complaint.
On December 16, 2013, Lausch informed Allen-Noll that she would remain on the recap
PIP, which repeated the same “stale” claims that he raised in the original PIP. Ten days later,
on December 26, 2013, Allen-Noll filed an administrative complaint with the Wisconsin Equal
Rights Division (ERD) and the Equal Employment Opportunity Commission (EEOC), alleging
racial discrimination and retaliation.
She alleged that MATC had ignored her internal
complaints and that she had been discriminated and retaliated against since May 19, 2011.
B. Allen-Noll’s Contract Not Renewed
Around February 2014, Provost Webb accepted Lausch’s recommendation that MATC
not renew Allen-Noll’s contract.
On March 15, 2014, Lausch demanded that Allen-Noll perform her clinical work even
though she had injured her knee and her doctor had advised her that she was unable to do
clinical work. On March 19, 2014, Lausch used the PIP as grounds to recommend that the
MATC Board not renew Allen-Noll’s contract, even though he knew that Allen-Noll had
improved and the problems identified in the PIP no longer existed.
On May 14, 2014, Allen-Noll and Lausch appeared before the Board of MATC to
present their respective positions. Allen-Noll was not represented by counsel at the hearing.
Lausch presented his PIP complaints to the board but failed to tell them that the PIP was no
longer valid or that he and others had been harrasing Allen-Noll and trying to get rid of her
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because of her race. Allen-Noll then presented her response. Even though the Board knew that
Allen-Noll had complained about discrimination and harassment, that those complaints had not
been investigated, and that Lausch had made numerous positive comments about her
performance but still placed her on a PIP, it voted 6 to 2 to adopt Lausch’s recommendation not
to renew Allen-Noll’s contract.
C. Allen-Noll’s Additional Complaints of Race Discrimination and Retaliation
On July 16, 2014, Allen-Noll filed a second administrative complaint with the ERD and
EEOC, alleging MATC “terminat[ed] her contract as a result of racial harassment/discrimination
and retaliation.” On October 3, 2014, Allen-Noll amended her administrative complaint to
include an additional race and disability claim that she was terminated because she could not
do certain work due to a knee injury for which Lausch would not allow her to use sick leave. On
January 5, 2018, Allen-Noll received right to sue letters on both of her administrative
complaints.
ANALYSIS
I. Legal Standard
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the complaint’s legal
sufficiency. A complaint survives a motion to dismiss if it “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
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alleged.’” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The Court
of Appeals for the Seventh Circuit has explained that it is generally sufficient that the
“complaint contain[] factual allegations identifying (1) who discriminated against [the
plaintiff]; (2) the type of discrimination that occurred; and (3) when the discrimination took
place.” McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). See also Swanson v.
Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details
about the subject-matter of the case to present a story that holds together.”)
II. Summary of Claims
Plaintiff Taysheedra Allen-Noll generally alleges that she was subject to harassment,
discrimination, retaliation, and defamation because of her race and seeks to state claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the due process and equal
protection clauses of the Fifth and Fourteenth Amendments (as enforced through 42 U.S.C. §
1983), and Wisconsin state defamation, breach of contract, and wrongful discharge law. She
has sued MATC and its board, as well as Lausch, Webb, Daniels, and Stoner in their individual
capacities.1 It is unclear whether MATC or its board are suable entities, which Fed. R. Civ. P.
17(b) instructs is a matter to be determined under state law, but neither party has raised the
issue, so I will not address it at this time.
1
Although Allen-Noll’s original complaint seemed to name defendants Daniels, W ebb, and Stoner
in both their individual and official capacities, her amended complaint does not allege any official capacity
claims.
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Defendants have moved to dismiss Allen-Noll’s amended complaint on the following
grounds: (1) she cannot pursue a Title VII claim against the individual defendants; (2) her
allegations do not permit an inference that defendants acted with discriminatory intent as
required under Title VII or § 1981; (3) her Title VII claim is barred by the applicable statute of
limitations; (4) her general allegations of denial of due process and equal protection fail to state
a valid claim for relief; (5) she fails to allege any personal involvement on the part of the
individual defendants as required under §§ 1981 or 1983; and (6) the Wisconsin Fair
Employment Act (WFEA) and the Workers’ Compensation Act preempt her state law tort
claims.2 I will address these arguments separately below.
III. Discrimination, Harassment, and Retaliation Claims
Allen-Noll’s allegations of racial harassment, discrimination, and retaliation arise under
Title VII and § 1981. Title VII prohibits employers from discriminating against their employees
based on race, 42 U.S.C. § 2000e–2(a)(1), and prohibits retaliation or discrimination against an
employee “because he has opposed any practice made an unlawful practice by this subchapter,”
42 U.S.C. § 2000e–3(a). Section 1981 prohibits racial discrimination and retaliation against
employees when a contractual relationship exists between the employer and employee. Thompson
v. Mem. Hosp. of Carbondale, 625 F.3d 394, 402-03 (7th Cir. 2010); Hobbs v. City of Chi., 573 F.3d
454, 460 (7th Cir. 2009). Although the statutes differ in the types of discrimination they
2
In their initial motion to dismiss, defendants also contended that the W FEA does not provide
a general private right of action outside the administrative process unless it is a claim for discrimination
occurring between July 1, 2009 and April 19, 2012. Sharp v. Stoughton Trailers, LLC, 2016 W L 3102241,
at *3 (W .D. W is. June 2, 2016) (explaining W FEA preemption and its very limited exception). However,
because Allen-Noll’s amended complaint does not include a W FEA claim, it is not necessary to address
this argument.
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proscribe, “the methods of proof and elements of the case are essentially identical.” Davis v.
Time Warner Cable of Se. Wisconsin, L.P., 651 F.3d 664, 671-72 (7th Cir. 2011) (quoting
McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009)).
Defendants challenge Allen-Noll’s claims under these statutes on a few different grounds,
which I discuss below.
A. Pleading Discriminatory Intent
Defendants contend that Allen-Noll’s conclusory allegation that defendants treated her
adversely because of her race is insufficient on its own to state a claim under either Title VII or
§ 1981. They argue that Allen Noll is required to allege more with respect to defendants’ intent
in order to surpass the plausibility threshold. This argument is not persuasive at the dismissal
stage because the Court of Appeals for the Seventh Circuit repeatedly has stated that “[t]he
pleading requirement for employment-discrimination claims is minimal.” Clark v. Law Office of
Terrence Kennedy, Jr., 709 Fed. Appx. 826, 828-29 (7th Cir. 2017).
In support of their argument, defendants rely primarily on cases decided at summary
judgment or after a jury trial, an approach that fails to acknowledge that this case is only at the
pleading stage. E.g., E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2031-32 (2015)
(summary judgment); Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154, 1159 (7th Cir. 2014)
(summary judgment). Defendants cite one case considering the sufficiency of a pleading,
McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 876-84 (7th Cir. 2012), in which employees of
a brokerage house challenged an incentive-retention system as having a disparate impact on
black brokers. McReynolds is distinguishable because it involved a bona fide production-based
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compensation system under 42 U.S.C. § 2000e–2(h), for which it is necessary to plead a specific
intent to discriminate.
In contrast, Allen-Noll’s amended complaint presents “standard
employment discrimination claims that do not present analogous issues regarding the pleading
of intent.” See Gosey v. Aurora Med. Ctr., 975 F. Supp. 2d 961, 973 (E.D. Wis. 2013), aff'd in
part, vacated in part, 749 F.3d 603 (7th Cir. 2014) (drawing same distinction with McReynolds).
The Seventh Circuit consistently has held that plaintiffs bringing standard discrimination
claims are not required to include allegations that would establish a prima facie case of
discrimination. Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (criticizing
district court for relying on “summary judgment decisions that addressed not the content of
complaints but the evidence needed to take a claim to a jury”). To state a claim of race
discrimination, a plaintiff need only identify the type of discrimination that she thinks occurred
(racial), by whom, and when it occurred. Clark, 709 Fed. Appx. at 828; Swanson, 614 F.3d at
405. See also Tate v. SCR Medical Transportation, 809 F.3d 343, 346 (7th Cir. 2015) (plaintiff
need only “aver that the employer instituted a (specified) adverse employment action against the
plaintiff on the basis of her sex”); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 781-82
(7th Cir. 2007) (stressing simplicity of pleading Title VII discrimination claim). As the court
of appeals has explained, “[e]mployers are familiar with discrimination claims and know how to
investigate them, so little information is required to put the employer on notice of these claims.”
Carlson, 758 F.3d at 827 (sufficient for plaintiff to identify which positions she sought and was
denied and attribute denial to sex discrimination).
This minimal pleading standard also applies to race discrimination claims based on
harassment, a hostile work environment, or constructive discharge. As the court of appeals
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explained in Carlson, a district court should not dismiss such claims at the pleading stage if the
“[hostile] situation is identified and the unlawful motivation alleged.” Id., 758 F.3d at 830.
This is particularly true where the plaintiff “include[s] specific examples of poor treatment.” Id.
The court emphasized that, even if the conditions “described in her complaint may not
ultimately qualify as intolerable, [] we cannot say so definitively at the pleading stage, which (we
stress again) is before any evidence is required.” Id.
Here, Allen-Noll alleges that beginning in 2011, her colleagues and supervisor criticized
her teaching style and performance, took actions to get her removed from a clinical teaching
position, and solicited negative comments from her students, all because she is African American.
Allen-Noll also alleges that when she later complained about racial harassment, no one took any
action to investigate or to stop it from occurring; instead, she was placed on a series of
performance improvement plans in 2012 and 2013 that eventually led to the non-renewal of her
contract in 2014. Under the standards applicable at the pleading stage, Allen-Noll has alleged
adequately that she was subjected to discrimination and harassment based on her race.
B. Title VII Statute of Limitations3
A Title VII plaintiff must first file a complaint with the Equal Employment Opportunity
Commission within 300 days of “when the defendant has taken the action that injures the
3
Defendants stated in an introductory section of their brief that they also were challenging AllenNoll’s § 1981 claim as barred by the applicable statute of limitations, which would appear to be four years
in this case. See Dandy v. United Parcel Service, Inc., 388 F.3d 263, 269 (7 th Cir. 2004) (claims “premised
on conduct which took place after the formation of [the] employment contract” subject to four-year statute
of limitations in 28 U.S.C. § 1658). However, because defendants never developed that argument, I have
not considered it. In any event, it would appear to fail for the same reasons as their Title VII statute of
limitations argument.
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plaintiff.” Haynes v. Indiana Univ., 902 F.3d 724, 730 (7th Cir. 2018); 42 U.S.C. § 2000e5(e)(1). A charge filed beyond the 300-day window is time-barred and, in turn, cannot be the
subject of a civil suit. See Majors v. Gen. Elec. Co., 714 F.3d 527, 536 (7th Cir. 2013) (citing
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). In this case, Allen-Noll
filed her first administrative complaint with the ERD and EEOC on December 26, 2013.
Subtracting 300 days from this filing date yields March 1, 2013 as the earliest date that AllenNoll’s charge could reach. Therefore, Allen-Noll’s claim must be based on alleged discriminatory
conduct that occurred after March 1, 2013.
The only alleged conduct occurring after March 1, 2013 and within the statutory period
is the October 23, 2013 meeting that Lausch and Ahern organized with Allen-Noll’s students
to discuss their concerns and MATC’s decision not to renew Allen-Noll’s contract. Defendants
argue that Allen-Noll fails to allege sufficient facts to suggest that these actions were motivated
by race, pointing out that Allen-Noll alleges only that Lausch “conspired” with Ahern and that
the Board simply reached a faulty conclusion by voting against her contract renewal. I disagree.
A full and fair reading of the complaint shows that Allen-Noll alleges that both acts were based
on her race and represented a continuing pattern of discriminatory and harassing conduct by
MATC employees toward her.
Defendants also contend that Allen-Noll is time-barred from relying on any conduct
occurring more than 300 days prior to the date she filed her EEOC charge. However, these
earlier incidents may be actionable by virtue of the “continuing violations” doctrine, which
“allows a court to consider as timely all discriminatory conduct relevant to a claim, so long as
there is sufficient evidence of a pattern or policy of discrimination.” Haugerud v. Amery Sch. Dist.,
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259 F.3d 678, 690 (7th Cir. 2001). Further, in the context of harassment, the Supreme Court
has held that incidents of harassment that occurred outside the limitations period can be
considered timely if they were part of a series of related incidents that continued into the
statutory time period. Morgan, 536 U.S. at 105; see also Heard v. Sheahan, 253 F.3d 316, 319
(7th Cir. 2001) (“A violation is ‘continuing,’ signifying that a plaintiff can reach back to its
beginning even if the beginning lies outside the statutory limitations period, when it would be
unreasonable to require or even permit him to sue separately over every incident of the
defendant's unlawful conduct.”). This rule is based on the view that the claim “is composed of
a series of separate acts that collectively constitute one ‘unlawful employment practice.’” Morgan,
536 U.S. at 117 (citing 42 U.S.C. § 2000e-5(e)(1)). In other words, because the “unlawful
employment practice” is not complete until the last act of harassment concludes, older incidents
may be considered timely because they are part the same “practice” as the newer incidents.
Raymond v. CoVantage Credit Union, 2017 WL 3017046, at *3 (W.D. Wis. July 14, 2017).
Allen-Noll alleges that the defendants engaged in a pattern of discriminatory conduct and
harassment that began in 2011, caused her removal from a clinical position, formed the basis for
discriminatory and retaliatory PIPs and “recap” PIPs in 2012 and 2013, and resulted in the nonrenewal of her contract in 2014. At this early stage in the proceedings, Allen-Noll’s allegations
suffice to support an inference that her employer’s allegedly discriminatory conduct was part of
a continuing violation, so that all of this conduct can be considered timely.
Defendants suggest that Allen-Noll should have known at a much earlier date that she
was the “victim of actionable harassment” and could have sought relief from the ERD or EEOC
long before December 2013, Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir.
16
1999) (internal citation omitted) (“Where a pattern of harassment spreads out over years, and
it is evident long before the plaintiff sues that she was a victim of actionable harassment, she
‘cannot reach back and base her suit on conduct that occurred outside the statute of
limitations.’”). This is a reasonable observation, but it raises a question that is best decided by
summary judgment or at trial.
IV. Equal Protection and Due Process
In her amended complaint, Allen-Noll identifies six ways that her equal protection and
due process rights were violated: (1) the removal from her classroom of a black student who was
supporting her and seeking to vindicate her reputation; (2) Lausch failed to take any official or
disciplinary action as mandated by the employee handbook to stop the harassment against her;
(3) Lausch failed to address and resolve her May 2011 complaint of harassment and
discrimination; (4) Lausch imposed spurious PIPs on her in order to discontinue her teaching
contract; (5) Lausch and Ahern arranged meetings to solicit student complaints against her; and
(6) Lausch recommended–and the MATC board voted–not to renew her contract without
providing a fair process. See Am. Cpt., dkt. 14 at ¶¶ 20, 30, 38, 50, 62-63, 75.
As an initial matter, I note that Allen-Noll’s claims rest on the assumption that the due
process and equal protection clauses provide a general entitlement to fair treatment from all
government officials in every circumstance. While fairness is a primary goal of both clauses, see
Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N. C., 452 U.S. 18, 24 (1981), claims brought under
them require proof of particular elements that Allen-Noll largely ignores.
defendants’ objections to the constitutional claims separately:
17
I will address
A. Equal Protection
Defendants argue that to state an equal protection claim, Allen-Noll must allege that
MATC used a classification or imposed a burden or conferred a benefit on one class of persons
to the exclusion of others without a sufficient justification. In support of their argument, they
cite Monarch Beverage Co. v. Cook, 861 F.3d 678, 682 (7th Cir. 2017), in which the Seventh
Circuit explained that “[t]he equal-protection guarantee is ‘concerned with governmental
classifications that ‘affect some groups of citizens differently than others.’” However, Monarch
involved an equal protection challenge to a statute that allegedly imposed an unfair burden on
beer distributors, and the quoted language explains the standard for “class-of-one” cases, which
the court did not even apply in Monarch. Id. (distinguishing Monarch’s claim from class-of-one
case, which may include selective enforcement of criminal statute or withholding of government
benefits or services).
Defendants are confounding two distinct equal protection doctrines: class-of-one cases
in which the plaintiff alleges that public officials treated her differently than other similarlysituated persons for an illegitimate or irrational reason, and employment discrimination cases
in which the plaintiff alleges differential treatment based on a protected class. See McCauley v.
City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (distinguishing class-of-one equal-protection
claims from those alleging discrimination in public employment, which import prima facie case
requirements from Title VII doctrine). The Seventh Circuit has made clear that employment
discrimination cases such as this one are subject to the same analysis as Title VII claims; “the
only difference is that a Title VII claim is against an employer, while an equal protection claim
is against individual employees.” Salas v. Wisconsin Dep’t of Corr., 493 F.3d 913, 926 (7th Cir.
18
2007). I already have found that Allen-Noll’s allegations that she was treated differently in the
terms and conditions of employment because of her race are sufficient to state a claim under
Title VII. Perforce, they also are sufficient to state an equal protection claim.
B. Due Process
Due process can involve two types of claims: substantive and procedural. “Procedural due
process rights guarantee that the state not deprive an individual of his or her property without
providing adequate procedural safeguards,” whereas the right to substantive due process is “more
nebulous, and typically employed by courts to protect against arbitrary state action that shocks
the conscious.” Markadonatos v. Vill. of Woodridge, 739 F.3d 984, 988 (7th Cir. 2014), opinion
vacated on other grounds, 760 F.3d 545 (7th Cir. 2014). Allen-Noll does not identify what type of
due process claim she is bringing, but because she generally alleges that defendants deprived her
of liberty and property, I will assume that she intends to bring a procedural due process claim.4
4
Even if Allen-Noll intended to bring a substantive due process claim, she may not do so. “The
Supreme Court has repeatedly cautioned against expanding the contours of substantive due process.”
Catinella v. County of Cook, Ill., 881 F.3d 514, 518 (7th Cir. 2018) (citing County of Sacramento v. Lewis, 523
U.S. 833, 842 (1998)). “Substantive due process claims can address harmful, arbitrary acts by public
officials[,] [b]ut such claims must meet a high standard, even when the alleged conduct was abhorrent, to
avoid constitutionalizing every tort committed by a public employee.” Geinosky v. City of Chi., 675 F.3d
743, 750 (7th Cir. 2012). “[T]he Court has limited the reach of the substantive component of the
due-process guarantee to cases involving abuse of governmental power so arbitrary and oppressive that it
shocks the conscience,” Catinella, 881 F.3d at 519, or interferes with the “fundamental rights of marriage,
reproduction, child-rearing, and bodily integrity,” Viehweg v. City of M ount Olive, 559 F. Appx. 550, 552
(7th Cir. 2014) (citing Sung Park v. Ind. Univ. Sch. of D entistry, 692 F.3d 828, 832 (7 th Cir. 2012)).
Although Allen-Noll’s allegations of harassment are troubling, she has not pleaded facts suggesting a
deprivation that “shocks the conscience” in the sense required in substantive due process cases. Compare
Rochin v. California, 342 U.S. 165, 172 (1952) (forcible stomach pumping to retrieve swallowed evidence
violates substantive due process), with Geinosky, 675 F.3d at 750-51 (explaining that, although issuing 24
bogus parking tickets constituted deliberate and unjustified official harassment, conduct did not violate
substantive due process).
19
To state a claim for a procedural due process violation, a plaintiff must allege: (1) a
liberty or property interest protected by the constitution; (2) a deprivation of that liberty or
property interest; and (3) a denial of due process. Forgue v. City of Chicago, 873 F.3d 962, 969
(7th Cir. 2017). Defendants argue that Allen-Noll’s allegations do not suggest that she was
deprived of any liberty or property interest protected by the constitution. Although Allen-Noll
recites various actions taken by Lausch and her colleagues that “defamed” her or deprived one
of her student’s First Amendment rights in discussing her due process claims, she fails to develop
any argument as to how or why these actions impinge her liberty or property. As defendants
correctly point out, mere “defamation by a public official does not violate the Due Process
Clause,” Fritz v. Evers, 907 F.3d 531, 533 (7th Cir. 2018) (citing Paul v. Davis, 424 U.S. 693, 712
(1976)), and Allen-Noll “has no cognizable liberty interest in h[er] reputation,” Mann v. Vogel,
707 F.3d 872, 878 (7th Cir. 2013) (quoting Dupuy v. Samuels, 397 F.3d 493, 503 (7th Cir.
2005)).
Courts have recognized an actionable liberty interest when a plaintiff has suffered an
injury to her reputation and has been deprived of a previously-held legal right or status
(commonly referred to as the “stigma plus” test), but that type of claim requires both damage
to the plaintiff’s reputation and the inability to find new employment in the plaintiff’s chosen
field because of it. Id.; Schepers v. Comm'r, Ind. Dep't of Corr., 691 F.3d 909, 914 (7th Cir. 2012).
In addition, Allen-Noll’s allegations that MATC failed to follow its own rules or handbook is not
a violation of due process. See Grant v. Trustees of Indiana Univ., 870 F.3d 562, 571 (7th Cir.
2016) (“We have tirelessly reminded litigants that our determination of whether the
20
requirements of federal due process were satisfied is different from a determination of whether
there was perfect compliance with an institution’s rules.”).
In any event, the crux of Allen-Noll’s due process claim is that she lost her job, and she
makes a persuasive argument that she had a protected property interest in her continued
employment at MATC. A public employee may have a property interest in her job if she has a
“legitimate expectation of continued employment,” which often is shown “through contractual
language limiting the [employer]’s discretion to fire” him. Meade v. Moraine Valley Cmty. Coll.,
770 F.3d 680, 686 (7th Cir. 2014); see also Grant, 870 F.3d at 571 (noting public employee who
can only be terminated for good cause has constitutionally protected property interest in
continued employment). Allen-Noll does not discuss the terms of her contract in her briefs, but
she alleges in her amended complaint that Lausch had been told that Allen-Noll could be
terminated only if she was on a PIP and showing no improvement. This fairly allows the
inference that MATC could terminate Allen-Noll only for cause. See Powers v. Richards, 549 F.3d
505, 511 (7th Cir. 2008) (policy or contract language prohibiting employee from being
dismissed without just cause generally suffices to create property interest). Although defendants
say that Allen-Noll was not a tenured employee, I infer from her allegations that there was at
least some limit on MATC’s ability to fire her or to choose not to renew her contract.
Defendants also contend that Allen-Noll cannot state a due process claim because she
received notice and a hearing concerning the decision not to renew her contract. In particular,
they argue that the PIPs put Allen-Noll on notice and that she had an opportunity to be heard
before the board voted to end her contract. Allen-Noll counters that the PIPs were invalid and
discriminatory and the hearing was biased and flawed. That’s enough to survive dismissal. See
21
Grant, 870 F.3d at 571 (“The cornerstone of due process is notice and the opportunity to be
heard ‘at a meaningful time and in a meaningful manner.’”) (quoting Mathews v. Eldridge, 424
U.S. 319, 333 (1976)). There will come a time when Allen-Noll will have to present evidence
establishing that the defendants denied her meaningful notice and a meaningful
opportunity–assuming that she has a property interest in her employment–but not today. Her
allegations are sufficient at this early stage to state a procedural due process claim.
V. Proper Defendants for Federal Claims
A. No Individual Liability Under Title VII
Defendants correctly point out, and Allen-Noll does not dispute, that Title VII authorizes
suits against employers, not employees. U.S. EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276,
1281 (7th Cir. 1995); Harris v. Nevada Corp., 2010 WL 4922515, at *2 (W.D. Wis. Nov. 29,
2010). Moreover, the Court of Appeals for the Seventh Circuit has held repeatedly that a
“supervisor does not, in his individual capacity, fall within Title VII’s definition of employer.”
See Passananti v. Cook Cty., 689 F.3d 655, 677 (7th Cir. 2012); Williams v. Banning, 72 F.3d 552,
555 (7th Cir. 1995). Therefore, Allen-Noll’s Title VII claim against individual defendants
Daniels, Webb, Lausch, and Stoner will be dismissed.
B. Entity Liability Under § 1981 and § 1983
In a brief argument, defendants also contend that Allen-Noll cannot state a claim against
MATC or its board of directors under either § 1981 or § 1983 because she does not allege that
the violation of these statutes resulted from a college policy, custom, or practice as required
22
under Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). However,
Monell involves claims against municipalities and other units of local government. It is not
applicable to claims against state entities like MATC. Id. Therefore, defendants’ motion to
dismiss MATC and its board of directors on this ground is denied.
However, both sides fail to recognize that only “persons” are subject to suit under § 1983.
Thus, Allen-Noll’s constitutional claims against MATC and its Board must be dismissed. Will
v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (“[N]either a State nor its officials acting
in their official capacities are ‘persons’ under § 1983.”); Fritz, 907 F.3d at 531. In contrast,
because § 1981 does not require that a plaintiff be aggrieved by a “person” acting under the color
of state law, that claim against MATC and the board may stand.
C. Personal Involvement by Individual Defendants
Defendants correctly point out that an individual cannot be held liable under § 1981 or
§ 1983 unless he or she personally caused or participated in the alleged violation. Kuhn v.
Goodlow, 678 F.3d 552, 555-56 (7th Cir. 2012) (defendant cannot be held liable under § 1983
unless he was personally involved in alleged conduct); Hildebrandt v. Ill. Dep't of Natural Res., 347
F.3d 1014, 1039 (7th Cir. 2003) (personal involvement requirement applies to §§ 1981 and
1983 claims); Odogba v. Wisconsin Dep't of Justice, 22 F. Supp. 3d 895, 909 (E.D. Wis. 2014).
Therefore, to state a claim under either statute, Allen-Noll must connect the individual
defendants with an alleged violation. Bank of America, N.A. v. Knight, 725 F.3d 815, 818 (7th Cir.
2013) (“Each defendant is entitled to know what he or she did that is asserted to be wrongful”).
23
1. § 1981 and Equal Protection Claims
Allen-Noll alleges that defendant Lausch personally participated in or at least knowingly
condoned the alleged racial harassment, discrimination, and retaliation that form the basis of
her § 1981 and equal protection claims. However, the amended complaint includes very few
allegations about the other individual defendants. Allen-Noll does not identify any actions
taken by Daniels or Stoner; in fact, she does not even mention these defendants in the body of
her amended complaint. As to Provost Webb, Allen-Noll alleges only that he accepted Lausch’s
recommendation not to renew Allen-Noll’s contract before the matter was taken to the board
for a hearing and vote.
In her brief, Allen-Noll states that the individual defendants “were strategically positioned
to stop the discrimination which deprived Ms. Allen of her contract, but did not do so.”
However, administrators like Webb, Stoner, and Daniels cannot be found liable for damages on
the basis of respondeat superior or other forms of vicarious liability. Ashcroft v. Iqbal, 556 U.S. 662,
675-77 (2009); T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010); Collegians for a Constructive
Tomorrow-Madison v. Regents of Univ. of Wisconsin Sys., 820 F. Supp. 2d 932, 948 (W.D. Wis.
2011). A suggestion to the effect that any public employee who knows (or should know)
about a wrong must do something to fix it is not a correct statement of the law. Pursuant
to Monell, public employees are responsible for their own misdeeds but not for anyone else’s.
Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). Allen-Noll seems to suggest that Daniels,
Webb, and Stoner knew that she had complained about discrimination, harassment, and
retaliation, but without more, there is no basis to infer that these individuals had any personal
24
involvement in the alleged wrongdoing.
Accordingly, Allen-Noll’s § 1981 and equal
protection claims against defendants Daniels, Webb, and Stoner will be dismissed.
2. Due Process Claim
There are no allegations in the amended complaint linking either Webb or Daniels to the
board’s decision not to renew Allen-Noll’s contract or to the notice and hearing that she was
provided in advance of that decision. On the other hand, because Stoner is identified as the
chair of the board, and the board held the hearing at which Allen-Noll was terminated, I can
infer at this stage that Stoner participated in both the hearing that was the board’s decision not
to renew Allen-Noll’s contract. Further, Allen-Noll’s allegations that Lausch orchestrated the
decision made by the board and manipulated the notice and hearing that Allen-Noll received
are sufficient to state a procedural due process claim against him.
VI. Preemption of State Law Claims
Defendants contend that Allen-Noll’s state law defamation claim is preempted by the
Workers’ Compensation Act, which Wisconsin has held provides the exclusive remedy for
injuries arising out of her employment, including defamation that occurs at the hands of
supervisors and co-workers before the employee is terminated. Anderson v. Hebert, 2011 WI App
56, ¶ 11, 332 Wis. 2d 432, 439, 798 N.W.2d 275, 278; Wolf v. F & M Banks, 193 Wis. 2d 439,
455, 534 N.W.2d 877, 883 (Ct. App. 1995). In addition, defendants argue that Allen-Noll’s
wrongful discharge and retaliation claims are preempted by the Wisconsin Fair Employment Act.
Bourque v. Wausau Hosp. Ctr., 145 Wis. 2d 589, 596, 427 N.W.2d 433, 436 (Ct. App. 1988)
25
(WFEA precludes all common law causes of action not “separate and distinct from the conduct
prohibited by the WFEA”); see also Thoms v. Berbee Info. Networks, Inc., 2006 WL 1993549, at *2
(E.D. Wis. July 13, 2006) (finding same).
Defendants’ legal analysis is correct on both counts. Although Allen-Noll had two
opportunities to address these arguments–once in response to defendants’ motion to dismiss her
initial complaint and again in response to their renewed motion to dismiss her amended
complaint–she has failed to do so. This waives her arguments in opposition to preemption. See
Alioto v. Town of Lisbon, 651 F.3d 715, 719 n. 1, 721 (7th Cir. 2011) (forfeiture occurs where the
“litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion
to dismiss”); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond
to an argument [in a motion to dismiss]-as the [plaintiffs] have done here-results in waiver.”).
Accordingly, Allen-Noll’s state law claims will be dismissed.
VIII. Conclusion
By way of recapitulation, I am granting defendants’ motion to dismiss all of the claims
against defendants Webb and Daniels because they cannot be sued under Title VII and AllenNoll has failed to allege that they were personally involved in any alleged wrongdoing.
Also, I am granting defendants’ motion to dismiss Allen-Noll’s Title VII claim against
Lausch and Stoner; her equal protection claims against MATC, the board, and Stoner; her due
process claims against MATC and the board; and all of her state law tort claims.
I am denying defendants’ motion to dismiss Allen-Noll’s Title VII claim against MATC
and the board; her § 1981 claims against MATC, the board, and Lausch; her equal protection
claim against Lausch; and her due process claims against Stoner and Lausch.
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ORDER
IT IS ORDERED that the motion to dismiss, dkt. 16, filed by defendants Madison Area
Technical College, Board of Madison Area Technical College, Mark Lausch, Jack Daniels,
Terrance Webb, and Carolyn Stoner is GRANTED in part and DENIED in part:
(1)
Plaintiff’s Title VII claims against defendants Lausch, Webb, Daniels, and
Stoner are DISMISSED.
(2)
Plaintiff’s § 1981 claims against defendants Webb, Daniels, and Stoner
are DISMISSED.
(3)
Plaintiff’s equal protection claims against defendants MATC, Board of
MATC, Webb, Daniels, and Stoner are DISMISSED.
(4)
Plaintiff’s due process claims against defendants MATC, Board of MATC,
Webb, and Daniels are DISMISSED.
(5)
Plaintiff’s state law defamation, breach of contract, and wrongful
discharge claims are DISMISSED as to all defendants.
(6)
Daniels and Webb are DISMISSED as defendants in this case.
(7)
Defendants’ motion is DENIED in all other respects.
Entered this 28th day of December, 2018.
BY THE COURT:
/s/
______________________
STEPHEN L. CROCKER
Magistrate Judge
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