Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

[W] Albrechtsen v. Board of Regents of the University of Wisconsin System

October 15, 2002

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.

Before Posner, Easterbrook, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Easterbrook, Circuit Judge.

OPINION WITHDRAWN and judgment vacated October 15, 2002.

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.

Before Posner, Easterbrook, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Easterbrook, Circuit Judge.

ARGUED SEPTEMBER 6, 2002

During the spring of 1998 Steven Albrechtsen, a professor in the Department of Health, Physical Education, Recreation, and Coaching at the University of Wisconsin-Whitewater, suffered two reverses: he was told that he could not teach two particular 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 lawsuit under Title VII of the Civil Rights Act of 1964. Albrechtsen contended that the Department had discriminated 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 other 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 distress. 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 contentions, 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 inferences) normally must be viewed in the light most favorable 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 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 appears." 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 opportunity 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 evidence 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 supplied. 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 support 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 headings. 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 sufficiency 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 administrative charge of discrimination, which lacks evidentiary 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 entitled to assistance from counsel, and an invitation to search without guidance is no more useful than a litigant's request to a district court at the summary judgment stage to paw through the assembled discovery material. "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 appeal 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 discrimination; (b) the persons who made the decisions in 1998 knew 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 mistreating all members of the faculty (and picking on Albrechtsen in particular), a position that is incompatible with a contention that men have been preferred over ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.