In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2982
SABINA BURTON,
Plaintiff‐Appellant,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM,
et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 14‐cv‐274 — James D. Peterson, Judge.
____________________
ARGUED JANUARY 19, 2017 — DECIDED MARCH 17, 2017
____________________
Before FLAUM, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Sabina Burton, a professor in the
criminal justice department at the University of Wisconsin‐
Platteville, sued the school’s Board of Regents and three indi‐
vidual defendants. She claims that her superiors took several
retaliatory actions against her over the course of about two
years. She seeks relief under Title VII of the Civil Rights Act
of 1964 and Title IX of the Education Amendments of 1972.
2 No. 16‐2982
The district court granted summary judgment to the Board
and the individual defendants. For the reasons set forth be‐
low, we affirm the judgment of the district court.
I. Background
In 2009, Dr. Burton was hired as a tenure‐track professor
in the criminal justice department at the University of Wis‐
consin‐Platteville. In January 2012, she was promoted to asso‐
ciate professor. Later that year, a series of events began to un‐
fold that eventually led to this litigation.
First, in October 2012, Burton received a complaint from a
student in her department who claimed that another profes‐
sor had sexually harassed her. The student was upset that the
professor had handed her a note during class that read “call
me tonight!” and included the professor’s phone number. The
next day, Burton contacted the Dean of the College of Liberal
Arts (which encompasses her department), Elizabeth Throop,
regarding the alleged harassment. Burton then spoke with her
department chair, Thomas Caywood, who broached the sub‐
ject with the offending professor.
The professor who wrote the note claimed that it was part
of a “breach experiment,” or an intentional provocation de‐
signed to display to the class social norms by violating them.
The student, however, took it seriously. In any event, Burton
told Caywood that she thought all faculty members should be
made aware whenever a professor conducts such an experi‐
ment, but Caywood didn’t think that was necessary. A week
later, Caywood circulated a memo to the department that al‐
tered the procedure for reporting student complaints about
faculty members: professors were now to bring students’
complaints directly to Caywood, rather than going outside of
No. 16‐2982 3
the department. The next month, Caywood said at a depart‐
ment meeting that the change was necessary because some‐
one had overreacted by bringing a student complaint outside
the department. Overall, Caywood became less collegial to‐
wards Burton, and she viewed the change in departmental
policy as a direct repudiation of her conduct.
Around the same time, Throop and Caywood began to
withdraw their support for a cybersecurity curriculum that
Burton had been developing. In April 2012, Burton submitted
(and Caywood signed) a grant application to the National Sci‐
ence Foundation in an attempt to receive funding for the cre‐
ation of a cybersecurity curriculum at the University. That ap‐
plication was rejected, but Burton eventually received a mod‐
est offer from AT&T of $7,000 to fund the cybersecurity pro‐
gram.
Caywood and Throop hampered this process after Burton
had reported the alleged harassment of the student in October
2012. Specifically, in November Caywood failed to respond to
Burton’s request for a meeting about the grant process. Then
on January 24, 2013, both Throop and Caywood objected to
the wording in a draft press release prepared by the AT&T
representative. In an email chain that included Burton and the
AT&T representative, Throop and Caywood expressed their
concerns that the press release said too much because Burton
had yet to submit formally any course curricula to the appro‐
priate University committees. Caywood also confronted Bur‐
ton about inaccuracies (which Caywood had never noticed
before) on two websites that Burton had created for the pro‐
posed cybersecurity program. Nevertheless, Throop and the
4 No. 16‐2982
AT&T representative ironed out the language of the press re‐
lease and Burton received the grant the next day in a public
ceremony attended by the provost of the University.
In the midst of this, in January 2013 Burton submitted her
application for tenure. It was unanimously granted two
months later. Although Caywood had initially opposed Bur‐
ton’s application, he eventually voted in her favor. Caywood
then stepped down as department chair after the 2012–13 ac‐
ademic year, seemingly in part because of conflict with Bur‐
ton. He was replaced by Michael Dalecki, but Burton’s trou‐
bles did not end there.
On August 13, 2013, Burton filed a charge of discrimina‐
tion with the Wisconsin Department of Workforce Develop‐
ment – Equal Rights Division (ERD). In it, Burton alleged that
(1) Caywood had discriminated against her because of her sex
and retaliated against her for reporting the note incident; (2)
both Throop and the University’s human resources director
(to whom Burton had sent an email complaining of Cay‐
wood’s retaliation) had discriminated against her; (3) Throop
had defamed her (in connection with the AT&T press release);
and (4) the University had been deliberately indifferent to her
grievances. After she filed that charge, Dalecki and others
pressured her on multiple occasions to drop her case. Burton
was told that she might have been considered for the positions
of dean or department chair, but that she could not expect to
advance if she continued to engage in litigious behavior.
On April 14, 2014, Burton filed her initial complaint in this
case in the Western District of Wisconsin, alleging both dis‐
crimination and retaliation. Then on October 20, 2014, she
completed an intake questionnaire with the United States
Equal Employment Opportunity Commission (EEOC). Four
No. 16‐2982 5
days later, Throop sent Burton a “letter of direction” which
identified seven events that Throop considered examples of
inappropriate behavior by Burton.1 Throop’s letter included
five specific directions for Burton to follow. Burton, however,
rejected the directions and accused Throop of mischaracteriz‐
ing the facts. Afterwards, Throop filed a complaint against
Burton with the chancellor of the Board of Regents pursuant
to Wis. Admin. Code UWS § 6.01, asking for a formal letter of
reprimand. It is unclear from the record whether this com‐
plaint has been resolved.
Finally, on December 4, 2014, Throop accused Burton of
canceling class without permission. In response, Burton sent
an email to all of her students documenting her issues with
Throop and Caywood and asking for the students’ help in
proving that she had in fact held class on that day. When the
students responded that class had occurred, Throop did not
discipline Burton. The next day, Burton filed her EEOC
charge. She filed the second amended complaint in this case
on September 11, 2015, and the district court granted sum‐
mary judgment to the Board on March 18, 2016.2 Burton
timely appealed.
1 As Burton conceded at oral argument, the record does not show that
Throop or anyone else at the University was aware of the intake question‐
naire when the letter of direction was issued.
2 In her response to the defendants’ motion for summary judgment
below, Burton dismissed all of her original claims except for retaliation
claims under Title VII and Title IX. She also apparently pursues claims
only against the Board of Regents, so we will refer to the defendants
simply as the Board.
6 No. 16‐2982
II. Analysis
A. Standard of Review
We review the district court’s decision to grant summary
judgment to the Board de novo. Brunson v. Murray, 843 F.3d
698, 704 (7th Cir. 2016). Summary judgment is appropriate
where “there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We view all evidence in the light most
favorable to Burton, who was the party opposing the motion
below. Brunson, 843 F.3d at 704. The Board is entitled to sum‐
mary judgment if Burton cannot present sufficient evidence
to create a dispute of material fact regarding any essential el‐
ement of her legal claims on which she bears the burden of
proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
B. Title VII and Title IX Framework
Both Title VII of the Civil Rights Act of 1964 and Title IX
of the Education Amendments of 1972 permit plaintiffs to
bring causes of action for retaliation. See 42 U.S.C. § 2000e‐
3(a) (Title VII); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,
173–74 (2005) (Title IX). The elements of those claims are the
same: Burton must produce enough evidence for a reasonable
jury to conclude that (1) she engaged in a statutorily protected
activity; (2) the Board took a materially adverse action against
her; and (3) there existed a but‐for causal connection between
the two. Milligan v. Bd. of Trs., 686 F.3d 378, 388 (7th Cir. 2012);
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013)
(causation standard).
No. 16‐2982 7
C. Waiver of Certain Arguments
One threshold matter that we must address is Burton’s at‐
tempt to inject more facts into the case on appeal than she pre‐
sented to the district court. Burton claims that the district
court erred by limiting its analysis to certain alleged protected
activities and materially adverse actions. She says that if the
district court had considered everything, it would have found
that she engaged in more protected activities and suffered
more significant adverse employment actions.
Burton’s problem is that she did not make these broad ar‐
guments to the district court. For example, on the Title IX
claim she argues that the district court should have consid‐
ered a litany of potential materially adverse employment ac‐
tions. Yet she presented only two to the district court: Cay‐
wood’s reaction to her reporting of the note incident and Cay‐
wood’s and Throop’s supposed withdrawal of support for her
cybersecurity curriculum. Throughout her briefing, Burton
relies on facts that appear nowhere in her opposition to the
Board’s motion for summary judgment below. It appears that
she made a strategic decision in the district court to focus on
the strongest points in her case and omit the rest.
That decision was not necessarily a bad one, but it does
preclude her reliance here on the facts omitted below. For one,
she had the burden of identifying protected activities and ma‐
terially adverse actions in opposition to summary judgment
before the district court. See Ellis v. CCA of Tenn. LLC, 650 F.3d
640, 649 (7th Cir. 2011). The district court was necessarily lim‐
ited to arguments presented in Burton’s opposition brief. Af‐
ter all, “a lawsuit is not a game of hunt the peanut. Employ‐
ment discrimination cases are extremely fact‐intensive, and
neither appellate courts nor district courts are ‘obliged in our
8 No. 16‐2982
adversary system to scour the record looking for factual dis‐
putes … .’” Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir. 2001)
(quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921‒22
(7th Cir. 1993)).
Instead, “[i]t is a well‐settled rule that a party opposing a
summary judgment motion must inform the trial judge of the
reasons, legal or factual, why summary judgment should not
be entered.” Liberles v. Cook Cty., 709 F.2d 1122, 1126 (7th Cir.
1983). “If [the nonmoving party] does not do so, and loses the
motion, it cannot raise such reasons on appeal.” Id. This rule
prevents Burton from raising specific factual arguments that
were absent from her briefing below even though her general
claims were plainly before the court. See Fednav Int’l Ltd. v.
Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010) (“[A] party has
waived the ability to make a specific argument for the first
time on appeal when the party failed to present that specific
argument to the district court, even though the issue may
have been before the district court in more general terms.”).
Thus, Burton is limited to the facts laid out in Part I above and
to the particular protected activities and adverse actions that
she argued below. We now proceed to the merits of her Title
IX and Title VII claims.
D. Title IX Claim
The Board concedes on appeal that Burton’s actions in re‐
porting the allegedly inappropriate in‐class note were pro‐
tected activities under Title IX. As Burton did not raise any
further protected activities below, we move on to assess
whether any alleged actions by Burton’s superiors in the wake
of the note incident were materially adverse to her. As noted
above, Burton raised two potential adverse actions: (1) the
supposed criticisms of Burton after she reported the note; and
No. 16‐2982 9
(2) the apparent withdrawal of support for Burton’s cyberse‐
curity initiative.
First, we emphasize that “[n]ot everything that makes an
employee unhappy is an actionable adverse action.” Brown v.
Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir. 2012)
(quoting Stephens v. Erickson, 569 F.3d 779, 790 (7th Cir. 2009)).
Rather, “an adverse action is one that a reasonable employee
would find to be materially adverse such that the employee
would be dissuaded from engaging in the protected activity.”
Silverman v. Bd. of Educ., 637 F.3d 729, 740 (7th Cir. 2011) (cita‐
tions and internal quotation marks omitted); see also Lucero v.
Nettle Creek Sch. Corp., 566 F.3d 720, 729 (7th Cir. 2009). In other
words, it does not include “those petty slights or minor an‐
noyances that often take place at work and that all employees
experience.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006).
Like the district court, we conclude that neither of Burton’s
proffered adverse actions rises to the level of materiality nec‐
essary to form the basis of a Title IX retaliation claim. With
respect to the post‐note criticism, the record does not support
Burton’s claims. Caywood never expressly denounced the
way Burton handled the situation. Instead, he merely pre‐
sented a new policy for handling similar problems in the fu‐
ture. Even if we were to construe Caywood’s rollout of the
new policy as an implicit reprimand, that would not be suffi‐
cient to be a materially adverse action either. See Chaib v. Indi‐
ana, 744 F.3d 974, 987 (7th Cir. 2014), overruled on other
grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir.
2016). As in Chaib, there was no showing that any reprimand
(or any lack of collegiality on the part of Caywood) caused
any subsequent consequences for Burton’s employment. See
10 No. 16‐2982
also Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009)
(“[W]ritten reprimands without any changes in the terms or
conditions of [an employee’s] employment are not adverse
employment actions.”). Indeed, Burton unanimously re‐
ceived tenure just months after the incident.
The same is true of the disagreement over the cybersecu‐
rity program at the University. The most the record shows is
that Throop and Caywood were concerned that the language
of the AT&T press release may have been over‐representing
the progress of the cybersecurity curriculum that Burton had
been developing, and that Caywood was concerned about
some errors on websites that Burton had created. Yet Throop
approved the press release the same day that the dispute be‐
gan, and Burton received the AT&T grant in a public cere‐
mony attended by the provost and vice chancellor of the Uni‐
versity. Once again, Burton received tenure within months of
this incident and can point to no material consequences re‐
sulting from it. While she may have perceived that Throop
and Caywood had retaliated against her, these actions simply
do not rise to the level of a materially adverse employment
action protected by Title IX. Therefore, like the district court,
we need not engage in any causation analysis. The district
court correctly granted summary judgment to the Board on
the Title IX retaliation claim.
E. Title VII Claim
With respect to the Title VII claim, the Board concedes
both that Burton undertook protected activities (filing charges
with the Wisconsin ERD and the EEOC and filing this lawsuit)
and was subjected to materially adverse employment actions
(Throop’s letter of direction and subsequent complaint to the
No. 16‐2982 11
chancellor).3 Burton didn’t raise any other protected activities
below, so she has forfeited the chance to do so now. But she
did present two further adverse actions to the district court:
(1) the repeated pressuring by Dalecki and others to drop the
discrimination charges; and (2) Throop’s threat of discipline
in retaliation for the allegedly canceled class on December 4,
2013. The district court properly concluded that the pressure
to drop the suit could not have amounted to a materially ad‐
verse action because these statements “did not cause [Burton]
any injury.” Dunn v. Washington Cty. Hosp., 429 F.3d 689, 692
(7th Cir. 2005).4 For a similar reason, unfulfilled threats of dis‐
cipline related to the accusation that Burton canceled class are
not actionable. See Poullard v. McDonald, 829 F.3d 844, 856‒57
(7th Cir. 2016) (recognizing that unfulfilled threats are not ma‐
terially adverse actions for the purpose of a Title VII retalia‐
tion claim).
So we are left with the task of determining whether the
record contains enough evidence for a reasonable jury to con‐
clude that the admitted protected activities were the but‐for
cause of the admitted adverse actions. Without direct evi‐
3 We follow the parties’ briefing in presenting the claims separately
under Title IX and Title VII. The parties appear to agree that the facts sur‐
rounding the in‐class note incident would not state a Title VII claim be‐
cause of the lack of employment relationship between Burton and the re‐
porting student. We need not consider whether they are right, because the
elements of a Title VII and Title IX retaliation claim are the same.
4 Even the comments noting that Burton could have been dean or de‐
partment chair material if she were not so litigious don’t amount to an
adverse action. There is no indication that Burton ever sought those posi‐
tions or that she was otherwise under consideration apart from the stray
comments. In other words, the comments caused Burton no injury.
12 No. 16‐2982
dence of causation, Burton must rely on circumstantial evi‐
dence like suspicious timing, ambiguous statements, treat‐
ment of similarly‐situated employees, and any other relevant
information that could permit an inference of retaliation. See
Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863, 869 (7th Cir.
2013). It’s also true that actions that were not in and of them‐
selves materially adverse, such as unfulfilled threats, may still
be evidence of retaliatory motive for actionable actions.
Poullard, 829 F.3d at 857. But the dispositive question remains
whether a reasonable jury could find a but‐for causal link be‐
tween the protected activities and adverse actions at issue.
And because the Board has presented non‐retaliatory reasons
for Throop’s conduct, the true question is whether the prof‐
fered reasons were pretext for retaliation. See Majors v. Gen.
Elec. Co., 714 F.3d 527, 539 (7th Cir. 2013).
We agree with the district court on this point as well. First,
the timing of the letter of direction is not suggestive of retali‐
atory motive. The last potential protected activity here was
the filing of this lawsuit in April 2014, six months before
Throop sent the letter of direction. Burton has not provided
any evidence that bridges the significant time gap between
her final protected activity and Throop’s adverse action.5
5 Moreover, as the district court noted, “Throop sought and obtained
an equity adjustment to Burton’s salary in March 2014.” Burton v. Bd. of
Regents, 171 F. Supp. 3d 830, 846 (W.D. Wis. 2016). This occurred between
the filing of Burton’s ERD charge and the initial complaint in this case.
Such positive intervention in between two instances of protected activity
at least somewhat undermines Burton’s retaliation theory. See Albrechtsen
v. Bd. of Regents, 309 F.3d 433, 437‒38 (7th Cir. 2002).
No. 16‐2982 13
While the six‐month gap does not preclude Burton’s claim as
a matter of law, it does substantially weaken it.6
Moreover, the record demonstrates that Throop had a fac‐
tual basis for each of the allegations she leveled against Bur‐
ton in the letter of direction, and Burton failed to provide ev‐
idence that the allegations were pretextual. Indeed, the dis‐
trict court stated that Burton did not dispute the truth of the
allegations, only “how Throop perceived and characterized
those events, and whether Throop should have accepted Bur‐
ton’s explanations for each of them.” Burton, 171 F. Supp. 3d
846. These are exactly the type of personnel management de‐
cisions that federal courts do not second‐guess. We intervene
only where “an employer’s reason for [an adverse action] is
without factual basis or is completely unreasonable.” Hobgood
v. Ill. Gaming Bd., 731 F.3d 635, 646 (7th Cir. 2013). This is
plainly not such a situation. Burton has not presented suffi‐
cient evidence of pretext, and as a result she cannot establish
but‐for causation.
There is no evidence in the record that Throop’s complaint
against Burton was retaliation for her protected activity, but
there is evidence that Burton decided not to heed any of the
“direction” contained in the letter. Then, as now, Burton
6 As indicated in Part I, Burton conceded at oral argument that the
record does not indicate that Throop or anyone else at the University knew
that Burton had completed an intake questionnaire with the EEOC four
days before the letter of direction issued. This gap in the record is partic‐
ularly harmful to Burton’s claim, because in order to be liable for Title VII
retaliation, “the employer must have had actual knowledge of the pro‐
tected activity” at issue. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1122
(7th Cir. 2009). Without evidence establishing actual knowledge, the tim‐
ing of the intake questionnaire is irrelevant.
14 No. 16‐2982
simply argues that Throop should never have written the let‐
ter. But once again, pretext “involves more than just faulty
reasoning or mistaken judgment on the part of the employer;
it is [a] lie, specifically a phony reason for some action.”
Harden v. Marion Cty. Sheriff’s Dep’t, 799 F.3d 857, 864 (7th Cir.
2015) (quoting Argyropoulos v. City of Alton, 539 F.3d 724, 735
(7th Cir. 2008)). There is no evidence that either the letter of
direction or Burton’s subsequent complaint were such lies. No
reasonable jury could find that either the letter of direction or
the subsequent complaint were caused by Burton’s protected
activities, rather than legitimate disagreements between Bur‐
ton and Throop. Therefore, the district court properly granted
summary judgment to the Board on Burton’s Title VII claim.
III. Conclusion
Professor Burton undoubtedly feels that she has been
treated unfairly by some of her superiors at the University be‐
cause she reported alleged harassment and proceeded with
this case. Yet the record does not support her claims. During
the relevant period, Burton was granted tenure by a unani‐
mous vote and the University held a public ceremony cele‐
brating Burton’s receipt of a grant from AT&T. Dean Throop
even sought an upward salary adjustment for her after she
had brought a charge with the Wisconsin ERD. Burton’s frus‐
trations may be significant, but they do not amount to action‐
able retaliation under either Title VII or Title IX. Therefore,
the district court correctly granted summary judgment to the
Board.
AFFIRMED.