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Albrechtsen v. Board of Regents of the University of Wisconsin System

October 23, 2002


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.


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 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 acting as it did. A new department chair asked faculty members to submit student evaluations for use in the meritpay 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 encompassed 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 refused to furnish a current C.V. or hand over student evaluations; he says that he viewed the requests as harassing and that the Department should have known his qualifications to teach the workshops and receive a merit increase. Maybe--though new administrators may want to verify for themselves what their predecessors supposedly knew. Often people come to management posts planning 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 decisions 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 protests 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 record. 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 communications--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 detail) during his testimony lacks any date or content; Albrechtsen did not attempt at trial or on appeal to explain 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 roughly 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 repeatedly (Albrechtsen received tenure in 1989, was promoted to associate professor in 1991 and to full professor in 1995), and allowing him to teach the summer workshops of his choice, only to "retaliate" by withholding a raise and canceling two workshops in 1998. If the Department had it in for him all the while, why the promotions 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.


DIANE P. WOOD, Circuit Judge, concurring in part and ...

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