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Renken v. Gregory

September 4, 2008

KEVIN J. RENKEN, DOCTOR, PLAINTIFF-APPELLANT,
v.
WILLIAM D. GREGORY, DOCTOR, WILLIAM R. RAYBURN, DOCTOR, JOHN A. WANAT, DOCTOR, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 04 C 1176-Lynn Adelman, Judge.

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

ARGUED MAY 29, 2008

Before FLAUM, MANION, and EVANS, Circuit Judges.

Dr. Kevin Renken, a professor at the University of Wisconsin-Milwaukee ("University"), filed a complaint pursuant to 42 U.S.C. § 1983 asserting*fn1 that University officials had retaliated against him for exercising his First Amendment rights when he complained about the University's use of grant funds. The district court granted summary judgment in favor of the University, and Renken appeals. We affirm.

I.

Renken is a tenured professor at the University's College of Engineering and Applied Sciences ("CEAS"). According to chapter 4.03 of the University Policies and Procedures manual, faculty members are "responsible for teaching, researching, and public service." A University faculty member's responsibilities are multi-faceted. For instance, the University evaluates a faculty member's execution of these responsibilities as well as his "professional and public service and contribution to the institution." Wis. Adm. Code § UWS 3.06(b). See also The University of Wisconsin-Milwaukee Policies & Procedures 3.17(1) ("Teaching, research and service are all to be considered in any judgment concerning promotion or appointment with tenure, specifically as measured by demonstrated teaching ability, professional competence, past and anticipated creative accomplishments, and contributions and service to the public, the University, and to the faculty member's profession."). Considerations for full professor-ship include a faculty member's grants and the projects developed from the grants. During his time at the University, Renken obtained more than $300,000 in education and research funds, including grants from the National Science Foundation ("NSF").

Renken and several of his colleagues, Professors Tracy Posnanski, Andrew Price, and John Reisel, applied for a grant from NSF for a project entitled "Establishment of Collaborative Thermal Engineering Technology Labora-tory by UWM Mechanical Engineering Faculty and Under-graduate Students." The purpose of the proposal was "to develop a mechanism for enhancing the education of engineering undergraduates at [the University] through the addition of laboratory components" to courses, which, at the time of the grant application, did not have hands-on laboratory content. As noted by Dr. Al Ghobanpoor, Professor and Associate Dean of CEAS, in a letter in support of the grant application, "The laboratories will enhance the education of hundreds of students a year who take these courses." Renken was the principal investigator/project director who signed and submitted the grant proposal.*fn2

Among other things, Renken included a budget with the grant project proposal. In the summary budget proposal, Renken listed the requested funds, which included compensation for himself, and Professors Posnanski, Price, and Reisel, as well as compensation for undergraduate students who worked on the project and funding for materials, and supplies. The proposed faculty compensation was to cover course releases, otherwise called course buy-outs. A course release covered a reduction in a faculty member's required teaching course-load because of the demands associated with the teaching and administration related to the grant project. The proposal also listed a University salary-match for "a two-course reduction of overall teaching load in the form of research release time for each PI [(principal investigator)] during the project."

The University approved the proposal, which was submitted to NSF. NSF awarded the University a grant of $66,499.00 to support the project for a period of three years. The award was conditioned on the University providing cost-sharing funds for the project in the amount of $222,667.00.

On May 14, 2002, Dean William Gregory sent Renken and Reisel a proposal about conditions relating to the University's matching funds for the NSF grant project for them to sign. The letter stated that the original grant proposal "was signed with the understanding that the standard practice for matching contributions applied," and set forth the proposal for the matching funds. The letter set forth a "statement of how [the University's] commitment for matching contributions for [the] proposal will be met," for equipment, salaries (course releases for PI's like Renken), and laboratory space. Signature lines designated for Renken and Reisel appeared at the bottom of the letter below the statement "I agree to the conditions noted above."

In response, Renken and Reisel sent Gregory a letter cataloguing a list of criticisms regarding the project: a lack of lab space for the project, Gregory's proposal for the use of certain funds for the labs, Gregory's decision about course releases related to the project, and the delay in paying undergraduates working on the project, and the CEAS's administration delay in processing purchase orders relating to the project and the resulting loss of certain vendors. Citing NSF instructions regarding program solicitations Renken and Reisel contended that Gregory's fund proposal contravened NSF regulations regarding matching funds. They noted throughout the letter that the grant project was educational and over-loaded their normal teaching duties. Renken and Reisel concluded, "it is unclear why our signatures are needed on your letter since we do not have signature authority. In addition, we do not want to advocate the violation of the NSF regulations."

After this exchange with Gregory, Renken filed a complaint against Gregory with Dr. Ann Snyder, chair of the University Committee. Renken cited the non-processing of the hourly contracts for undergraduates who worked on the NSF project. In Renken's opinion, the non-payment was "a vindictive action by Dean Gregory because the PIs have pointed-out inconsistencies on the part of his office."

On July 26, 2002, Gregory revised his May 14th letter, striking a portion of the original letter regarding lab space. In an accompanying memorandum, Gregory noted that Renken had been previously informed that expenditures related to the project would not be approved until Renken and Reisel signed the May 14th letter. Gregory also acknowledged Renken and Reisel's contact of the University Committee regarding the May 14th letter. Finally, Gregory notified them that a rejection of the proposal would prompt Gregory to contact the Dean of the Graduate School to initiate the cancellation of the NSF grant.

Renken did not sign Gregory's revised letter, but rather submitted a request for a course buy-out for the NSF project. On August 27, 2002, in response to Renken's request, Gregory sent Renken a letter notifying Renken that the NSF project account was not a valid account. Specifically, Gregory noted that because Renken and Reisel did not sign his July 26, ...


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