Albrechtsen, Steven v. Bd Regents Univ WI ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3577, 01-3791 & 01-4197
STEVEN J. ALBRECHTSEN,
Plaintiff-Appellee, Cross-Appellant,
v.
BOARD OF REGENTS OF THE
UNIVERSITY OF WISCONSIN SYSTEM,
Defendant-Appellant, Cross-Appellee,
and
H. GAYLON GREENHILL, et al.,
Defendants-Appellees.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 00-C-597-S—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 6, 2002—DECIDED OCTOBER 23, 2002
____________
Before POSNER, EASTERBROOK, and DIANE P. WOOD,
Circuit Judges.
EASTERBROOK, Circuit Judge. During the spring of 1998
Steven Albrechtsen, a professor in the Department of
2 Nos. 01-3577, 01-3791 & 01-4197
Health, Physical Education, Recreation, and Coaching at
the University of Wisconsin-Whitewater, suffered two
reverses: he was told that he could not teach two particu-
lar summer workshops that year (losing about $1,210
in pay), and he did not receive an $86 merit increase in
his salary for the next year. He responded with this law-
suit under Title VII of the Civil Rights Act of 1964.
Albrechtsen contended that the Department had discrim-
inated against him on account of sex and retaliated for
his support of other teachers who he believed to have
been the victims of sex discrimination. He had some oth-
er claims as well, but the district judge removed them
before the start of trial. A jury decided that Albrechtsen
was the victim of retaliation but not sex discrimination,
and it awarded him a total of $293,840 in damages (when
topped up with four years’ back pay calculated by the
court). The bulk of this ($250,000) represented mental dis-
tress. Sensing that this number had been drawn from a
hat, the district judge produced a smaller container and
drew out $100,000 to replace it; Albrechtsen accepted the
remittitur and a final award of $143,840, to which the
judge added about $118,000 in attorneys’ fees.
Both sides have appealed. Albrechtsen’s requires no
discussion beyond stating that we agree with the district
judge’s decision with respect to all of the claims resolved
before trial. The University’s appeal presents nine con-
tentions, counting the major subdivisions, but we need
consider only one: whether the evidence supports the
jury’s conclusion that the University retaliated against
Albrechtsen for taking a stand against sex discrimination.
After a trial, the evidence (including all plausible infer-
ences) normally must be viewed in the light most favor-
able to the verdict. That’s a blackletter principle, but
what is normal does not always hold. The norm supposes
that the parties have presented that evidence to the
court of appeals in a digestible fashion, so that we may
Nos. 01-3577, 01-3791 & 01-4197 3
evaluate the record’s contents. Both sides fell down at that
task. The University failed to comply with Circuit Rule
28(c): “The statement of facts required by Fed. R. App. P.
28(a)(7) shall be a fair summary without argument or
comment. No fact shall be stated in this part of the
brief unless it is supported by a reference to the page or
pages of the record or the appendix where that fact ap-
pears.” Instead of summarizing the record so that we
could learn what inferences in Albrechtsen’s favor the
evidence fairly supports, the University’s “statement of
facts” is a tendentious recap of the defense case. No oppor-
tunity to disparage Albrechtsen’s position is missed, and
facts that might support his position do not see the light
of day. When his turn came, however, Albrechtsen did—
nothing. Instead of marshaling the facts that support
the verdict, the half-page portion of the brief captioned
“Statement of Facts” just refers us to the district court’s
opinion denying the University’s motion for summary
judgment. This is bad on three counts: first, appellate
briefs may not incorporate other documents by reference,
see Fleming v. Kane County, 855 F.2d 496, 498 (7th
Cir. 1988); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417,
1430 (7th Cir. 1986); second, we need to know what evi-
dence was presented at trial, not whether the district
judge thought that there was an issue for trial; third, the
district court’s overview of the pretrial situation does not
contain a single reference to the record. Albrechtsen has
effectively provided no statement of facts at all.
An appellee is entitled to pretermit a statement of facts
“unless . . . dissatisfied with the appellant’s statement”.
Fed. R. Civ. P. 28(b). When the appellee chooses to omit
a statement of facts, the court of appeals may decide
the case on the basis of the facts that the appellant sup-
plied. See Investment Funds Corp. v. Bomar, 306 F.2d
32 (5th Cir. 1962). Just as many district courts require
paragraph-by-paragraph responses to facts recited in sup-
4 Nos. 01-3577, 01-3791 & 01-4197
port of motions for summary judgment, appellate courts
require narrative responses. The effect of omission is the
same in either event—the court treats silence as assent
to the moving party’s presentation. See, e.g., Bradley v.
Work, 154 F.3d 704, 707-08 (7th Cir. 1998); Little v.
Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995).
This is not to say that we have a fetish for section head-
ings. If a statement of facts appeared somewhere
else in the brief, say as an introduction to a section with
the caption “Argument,” we would give it the same effect
as one with the proper caption and in the proper place.
See Fed. R. App. P. 28(a). Yet Albrechtsen’s brief falls
down here too. His entire argument devoted to the suffi-
ciency of the evidence fits within 8 pages, only a quarter
of the space the University dedicated to laying out its
version of the facts, and it does not furnish any detail.
Most of the references in this section are to the admin-
istrative charge of discrimination, which lacks evidentia-
ry value. When asked at oral argument what evidence
he was relying on, counsel replied: “The entire record.”
That will not do, nor will counsel’s fallback invitation that
we read all of Albrechtsen’s testimony. Courts are en-
titled to assistance from counsel, and an invitation to
search without guidance is no more useful than a liti-
gant’s request to a district court at the summary judg-
ment stage to paw through the assembled discovery ma-
terial. “Judges are not like pigs, hunting for truffles
buried in” the record. United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991). We therefore approach this ap-
peal on the assumption that the facts are those that the
University has recounted, plus those in the transcript
pages to which Albrechtsen’s brief directly refers.
From that perspective, this is an easy case. To show
that the University violated Title VII, Albrechtsen had
to establish that (a) he complained about sex discrimina-
tion; (b) the persons who made the decisions in 1998 knew
Nos. 01-3577, 01-3791 & 01-4197 5
about those complaints; and (c) the adverse actions in
1998 occurred because of the complaints (in other words,
that, if Albrechtsen had not complained, and all else had
remained the same, he would have received a raise and
been allowed to teach the workshops). As the University
recounts the story, the only complaint in the record is
a letter that Albrechtsen wrote in 1997, and this letter—
though full of protests about the management of the
Department—does not contain the words “sex” or “gender.”
Instead the letter contends that the Department is mis-
treating all members of the faculty (and picking on
Albrechtsen in particular), a position that is incompat-
ible with a contention that men have been preferred
over women, or the reverse. We read that letter the same
way the University does, and no reasonable juror could
understand it otherwise. If there has been no protest
about sex discrimination, there cannot have been any
prohibited retaliation.
The University adds that it had lawful reasons for act-
ing as it did. A new department chair asked faculty mem-
bers to submit student evaluations for use in the merit-
pay process. Albrechtsen refused to do this, and the chair
responded by withholding any merit pay increase. The
new chair asked Albrechtsen for a current curriculum
vitae so that she could assess whether his knowledge en-
compassed the subjects he proposed to teach (“Wilderness
Medicine” and “Electrocardiography”); again Albrechtsen
refused, and again the chair followed Albrechtsen’s “no”
with a “no” of her own. Albrechtsen concedes that he re-
fused to furnish a current C.V. or hand over student eval-
uations; he says that he viewed the requests as harassing
and that the Department should have known his qualifi-
cations to teach the workshops and receive a merit in-
crease. Maybe—though new administrators may want
to verify for themselves what their predecessors supposed-
ly knew. Often people come to management posts plan-
6 Nos. 01-3577, 01-3791 & 01-4197
ning to change the way things are done, so the fact that
Albrechtsen had taught these workshops, and received
merit increases, in years past does not imply that the
new chair must have been discriminating or retaliating
when she asked for information and concluded that a
truculent faculty member should not receive a reward.
With only the January 1997 letter to go on it would be
impossible for a jury reasonably to conclude that the de-
cisions in spring 1998 were retaliation rather than a use
of the broom that new managers often bring to office.
Albrechtsen tells us that the protected speech occurred
between 1987 and 1991, when he made numerous pro-
tests about sex discrimination. By his lights, what the
1997 letter does is imply that the Department would not
have forgotten these events. Yet Albrechtsen does not
point to any example of his pre-1997 protests in the rec-
ord. The few references in his brief to the trial record
yield only allusions to what may have happened. Because
the record does not establish the contents of these com-
munications—at least, Albrechtsen’s references did not
enable us to find them—it is hard to see how the evidence
could be sufficient. And the possibility that Albrechtsen
uttered more recent complaints is not an assertion that
Albrechtsen made on the stand. The “long litany of stuff”
that the University’s chancellor mentioned (without de-
tail) during his testimony lacks any date or content;
Albrechtsen did not attempt at trial or on appeal to ex-
plain what this “stuff” might be. Nor could we find any
case in which a claim has been held sufficient despite
lack of any detail about who said what to whom and when.
Albrechtsen has not substantiated any claim that the
University retaliated against oral statements made rough-
ly contemporaneously with the 1997 letter. That leaves
the earlier protests.
It would be bizarre for an academic department to
wait most of a decade, promoting the faculty member
Nos. 01-3577, 01-3791 & 01-4197 7
repeatedly (Albrechtsen received tenure in 1989, was
promoted to associate professor in 1991 and to full profes-
sor in 1995), and allowing him to teach the summer work-
shops of his choice, only to “retaliate” by withholding
a raise and canceling two workshops in 1998. If the De-
partment had it in for him all the while, why the pro-
motions and the substantial raises that went with
them? We do not know of any case in which a court has
found (or permitted a jury to find) that action so long
deferred after the provocation, despite the possibility of
immediate retaliation (an important qualification, see
McGuire v. Springfield, 280 F.3d 794, 796 (7th Cir. 2002)),
could be deemed a consequence of that provocation. To the
contrary, we regularly sustain summary judgments based
on the view that a year’s gap between the act and the
supposed consequence shows that a causal relation is
too unlikely to support a decision by the preponderance of
the evidence. See, e.g., Lalvani v. Cook County, 269 F.3d
785, 790-91 (7th Cir. 2001); Horwitz v. Board of Education,
260 F.3d 602, 612-16 (7th Cir. 2001). Here the gap was
at least seven years. A contention that the events of 1987
to 1991 caused the decisions of 1998 is too farfetched to
be the basis of a money judgment.
REVERSED
8 Nos. 01-3577, 01-3791 & 01-4197
DIANE P. WOOD, Circuit Judge, concurring in part and
dissenting in part. A jury heard all the evidence about
Steven Albrechtsen’s claim of retaliation and sex discrim-
ination in violation of Title VII at the hands of the Uni-
versity of Wisconsin–Whitewater (UWW), and it decided
that Albrechtsen had proven his retaliation case. Largely
because Albrechtsen’s lawyer filed a poor brief in this
court, the majority has decided to overturn the jury’s ver-
dict and order judgment for the University. While I agree
that the briefs filed by both parties in this appeal were
seriously flawed—the University’s brief is tendentious,
ignores the proper standard of review for jury verdicts,
misleadingly disregards facts that were unfavorable to its
position, and is thus generally unreliable, while Albrecht-
sen’s brief is so condensed as to be almost (but not quite
entirely, as I explain below) devoid of useful information
in support of the judgment—we have a responsibility to
assess what is before us fairly and to respect both the
perspective of the trial judge and the role of the jury in
civil litigation. When one does this, it is apparent that
there was sufficient evidence before the jury to support
its verdict in favor of Albrechtsen. I therefore respectfully
dissent.
As the majority notes, ante at 4, in order to show that
the University violated the anti-retaliation provisions of
Title VII, Albrechtsen had to establish that
(a) he complained about sex discrimination; (b) the per-
sons who made the decisions in 1998 knew about those
complaints; and (c) the adverse actions in 1998 occurred
because of the complaints.
The majority’s first misstep is to accept the University’s
position that the only instance of a complaint on which
Albrechtsen was relying was to be found in a letter that
he wrote on January 10, 1997, to H. Gaylon Greenhill, then
the Chancellor of UWW. The University made the same
Nos. 01-3577, 01-3791 & 01-4197 9
argument before the district court, and the district court
rejected this position in its Memorandum and Order
denying (apart from the remittitur to which the majority
refers) the University’s post-verdict motions under Fed. R.
Civ. P. 50(b) and 59. As the district court’s order (to which
Albrechtsen refers specifically in his brief) makes clear,
the January 10 letter was not the only evidence of a
complaint before the jury:
Defendant [i.e., the University] contends that the
Court erred in allowing plaintiff to attribute retaliation
to the January 10, 1997 letter rather than the events
before 1991 expressly articulated in his EEOC charge.
This letter was properly admitted to show defendant’s
knowledge that plaintiff had opposed gender discrimi-
nation.
Defendant contends that this letter does not oppose
gender discrimination. The Court disagrees. The letter
written by plaintiff to H. Gaylon Greenhill, the Chan-
cellor of UWW, states, “These members of the tenured
faculty have repeatedly violated the rights of individu-
als, acted without regard for law and procedure and
perpetuated an extremely hostile work environment
in Williams Center.” This statement in conjunction
with plaintiff’s past complaints provided notice to de-
fendant that plaintiff opposed gender discrimination.
Brief for Appellant, App. 17.
At oral argument, counsel for the University conceded
that protection for Title VII purposes did not extend only
to written documents. Oral complaints of discrimination
count too, and evidence of such oral complaints was an
important part of Albrechtsen’s case. The district court
properly recognized this, when it referred to “plaintiff’s past
complaints” to give context to the January 10 letter.
Moreover, there was evidence in the record in support of
Albrechtsen’s position—to which he referred in his brief—
10 Nos. 01-3577, 01-3791 & 01-4197
of both the oral complaints and the fact that they were
sufficient to make the responsible defendants aware of
his position. For example, the brief cites to Chancellor
Greenhill’s testimony on cross-examination, Transcript
at 2-180, in support of the verdict. If one turns to that
page and the one that immediately follows it in the tran-
script, one finds the following exchange:
Q [Mr. Lasker, Albrechtsen’s lawyer]: You testified on
direct examination, Dr. Greenhill, that sex discrimina-
tion was a recent issue. What did you mean by that?
A [Greenhill]: It was recent in the sense of it being
raised by Dr. Albrechtsen. I mean the question of sex
discrimination in America is, is, been around. But—
Q: So what do you mean by your asserting that Dr.
Albrechtsen’s allegation of sex discrimination was re-
cently made?
A: That it isn’t that—it was late in this long litany
of stuff, that, of complaints and such that I recall any
kind of reference to sex discrimination. It may have
been raised by other—to other people, but I, not to me.
Two pages later, at Tr. 2-183, which is also cited in
Albrechtsen’s brief, Chancellor Greenhill acknowledged
that he received the January 10 letter.
This exchange is important in a number of ways. First,
it shows that Albrechtsen indeed did complain expressly
about sex discrimination. Second, it shows that the official
with final authority over UWW knew about those com-
plaints. Third, it shows that the complaints were recent.
Contrary to the majority’s assumption and the Univer-
sity’s representation, the complaints occurred very close
in time to the retaliatory actions about which Albrechtsen
was complaining. These points correspond exactly to the
three elements the majority acknowledges Albrechtsen
had to prove. There was nothing irrational about the jury’s
Nos. 01-3577, 01-3791 & 01-4197 11
decision to credit this testimony, to use it to illuminate
ambiguous references in the January 10 letter, and to
base its ruling for Albrechtsen on this evidence. The ma-
jority insists on looking at the letter in isolation, which
is the only way that it can conclude that no reasonable
juror could have understood it to be referring to sex dis-
crimination (in any of its forms—direct, or harassment).
That is not the way the evidence was presented to the jury,
and the jurors were not required to put on blinders to the
rest of the evidence when they considered the letter.
The fact that Dean Barnett testified (in another refer-
ence furnished to us by Albrechtsen’s lawyer) that he did
not remember Albrechtsen’s complaints is not dispositive.
The exchange set forth below is equivocal, and the jury
might have concluded that the Dean was not being fully
forthcoming:
Q: Were you [i.e., Barnett] even aware that Steve
Albrechtsen had in 1997 complained of sexual harass-
ment?
A: I do not remember those kinds of complaints. It
is possible that in one of those complaints it was ex-
plicitly mentioned. I do know that he complained about
individuals. I do know that he complained about being
discriminated against. I do know that he complained
that other members in the department were disadvan-
taged because of their association with him. I do not
remember in particular that gender was an issue.
Tr. 2-57-58. Juries are sometimes skeptical about sudden
failures of memory on the part of people who otherwise
have a detailed recollection of the past.
The jury was also entitled to conclude that the Univer-
sity’s supposed legitimate reasons for taking the actions
it did were pretextual. True, a jury certainly could have
found that the new department chair (Clayton) wanted
12 Nos. 01-3577, 01-3791 & 01-4197
fresh resumes from everyone on the faculty, but it equally
might have found this to be pointless if Albrechtsen’s
vita had not changed since the last one on file. The jury
might have found the University’s newfound concern
about his qualifications to teach the summer classes to be
phony, since he had taught the very same classes for the
past three years, and since some of the very same people
(Barnett and Greenhill) had approved the earlier offerings.
Moreover, while the majority makes much of the fact that
Clayton’s sudden concern with Albrechtsen’s qualifica-
tions could have been the “use of the broom” that new
managers frequently bring to office, it might also have
noted that Clayton became department chair in the fall
of 1996, more than a year and a half before her March
1998 memorandum raising concerns about Albrechtsen’s
ability to teach the workshops. And while she testified on
the stand that she was on a trip out of the country at the
time of the 1996 approval of the workshops and that a
deputy signed off on the workshops in her stead, a respon-
sible department chair who was new to her post—and
intent on using her new manager’s broom—would almost
certainly have reviewed all such documents upon her
return. A reasonable jury might have concluded that
Clayton had every opportunity to object to Albrechtsen’s
qualifications at the beginning of her tenure as depart-
ment chair in 1996, but did not do so until the following
academic year, in the spring of 1998, after a new round
of complaints from Albrechtsen.
Furthermore, the courses—“Wilderness Medicine” and
“Electrocardiography”—were within the scope of Albrecht-
sen’s professional training. As the University concedes in
its Reply Brief at 19, Albrechtsen “completed a doctoral
degree in physiology and biophysics at Colorado State
University, has expertise in cardiovascular physiology
and environmental physiology, has teaching experience
at UWW, Colorado State University and the University of
Nos. 01-3577, 01-3791 & 01-4197 13
Colorado, and is a member of the American College of
Sports Medicine, the American Association of Cardiovascu-
lar and Pulmonary Rehabilitation, the Wilderness Med-
ical Society and other professional organizations.” The jury
also knew that the University’s story about the reason
for disapproving the 1998 offerings had shifted; at one
point, it said that it received notice of his interest in
teaching the classes too late to include them in the cata-
log, but later, it asserted that the lack of a resume and
its concerns about his background were the real reason he
could not present them. The jury reasonably could have
found that these were just excuses, and that the Univer-
sity was instead retaliating for his complaints.
The majority also questions why the University would
have decided to retaliate against Albrechtsen for his con-
stant complaints when it had promoted him several times.
Ante at 6. The answer is simple: it granted him tenure and
later promoted him under threat of legal action based
on his earlier complaints. Paragraph 404 of Albrechtsen’s
complaint sets forth the terms of a settlement agreement
that Greenhill and he signed on June 9, 1993, that was
designed to govern his promotion process. The 1993 agree-
ment stated in part: “The parties affirm that any evalua-
tion of Dr. Albrechtsen for promotion to rank of full pro-
fessor shall be conducted under established criteria (in-
volving teaching, research, and service) and procedures at
the department, college, and university levels.” The agree-
ment was concluded right in the middle of the promotion
process the majority outlines: tenure in 1989, promotion to
associate professor in 1991, promotion to full professor
in 1995. There is also ample evidence of continued com-
plaints about discrimination over that entire course of
time. Thus, the hostility that erupted in 1998 was not new;
it merely took on a more virulent form, which amounted
to an adverse employment action in retaliation for the re-
cent complaints of sex discrimination described by Chan-
cellor Greenhill.
14 Nos. 01-3577, 01-3791 & 01-4197
Because I would affirm the jury’s verdict, as properly
modified by the district court, I would also affirm the
court’s award of attorney’s fees. I agree with the majority
that there is no merit to Albrechtsen’s cross-appeal, and
so to that extent I concur in its opinion. I cannot, however,
support this court’s decision to second-guess the verdict
of a jury that heard all the testimony pertaining to
Albrechtsen’s claim and concluded that he was the victim
of unlawful retaliation. I therefore dissent.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-23-02