Sabina Burton, a professor in the criminal justice department at the University of Wisconsin-Platteville, sued the school’s Board of Regents and three individual 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. The district court granted summary judgment to the Board and the individual defendants. For thе reasons set forth below, 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 Wisconsin-Platteville. In January 2012, she was promoted to associate professor. Later
First, in October 2012, Burton received a complaint from a student in her department who claimed that another рrofessor 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 thе subject with the offending professor.
The professor who wrote the note claimed that it was part of a “breach experiment,” or an intentional provocation designed 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 experiment, but Caywood didn’t think that was necessary. A week later, Caywood circulated a memo to the department that altered the procedure for reporting student complaints about faculty members: professors were now to bring students’ • complaints directly to Caywood, rather than going outside of the department. The next month, Caywood said at a department meeting that the change was necessary because someone had overreacted by bringing a student complaint outside the department. Overall, Caywood became less collegial towards Burton, and she viewed the change in departmental policy as a direct repudiation of her conduct.
Around the same time, Throop and Cay-wood 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 Nationаl Science Foundation in an attempt to receive funding for the creation of a cybersecurity curriculum at the University. That application was rejected, but Burton eventually received a modest offer from AT&T of $7,000 to fund the cybersecurity program.
Caywood and Throop hampered this process after Burton had reported the alleged harassment of the student in October 2012. Specifically, in November Cay-wood failed to respond to Burton’s request for а 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 appropriate University committees. Caywood also confronted Burton about inaccuracies (which Caywood had never noticed before) on two websites that Burton had created for the proposed cybersecurity program. Nevertheless, Throop and the AT&T representative ironed out the language of the press release and Burton received the grant the next day in a public ceremony attended by the provоst 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 Burton’s application, he eventually voted in her favor. Caywood then stepped down as department chair after the 2012 — 13 academic year, seemingly in part because of conflict with Burton. He was replaced by Michael Dalecki, but Burton’s troubles did not end there.
On August 13, 2013, Burton filed a сharge of discrimination with the Wiscon
On April 14, 2014, Burton filed her initial сomplaint in this case in the Western District of Wisconsin, alleging both discrimination and retaliation. Then on October 20, 2014, she completed an intake questionnaire with the United States Equal Employment Opportunity Commission (EEOC). Four days later, Throop sent Burton a “letter of direction” which identified seven events that Throop considered examples of inappropriate behavior by Burton.
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 summary judgment to the Board on Marсh 18, 2016.
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,
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.,
C. Waiver of Certain Arguments
One threshold matter that we must address is Burton’s attempt to inject more facts into the case on appeal than she presented 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 arguments to the district court. For example, on the Title IX claim she argues that the district court should have considered a litany of potential materially adverse employment аctions. Yet she presented only two to the district court: Caywood’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 materially adverse actions in opposition to summary judgment before the district court. See Ellis v. CCA of Tenn. LLC,
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.,
D. Title IX Claim
The Board concedes on appeal that Burton’s actions in reporting the allegedly inappropriate in-class nоte were protected 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 (2) the apparent withdrawal of support for Burton’s cy-bersecurity initiative.
First, we emphasize that “[n]ot everything that makes an employee unhappy is an actionable adverse action.” Brown v. Advocate S. Suburban Hosp.,
Like the district court, we conclude that neither of Burton’s proffered adverse actions rises to the level of materiality necessary 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. Caywoоd never expressly denounced the way Burton handled the situation. Instead, he merely presented a new policy for handling similar problems in the future. Even if we were to construe Caywood’s rollout of the new policy as an implicit reprimand, that would not be sufficient to be a materially adverse action either. See Chaib v. Indiana,
The same is true of the disagreement over the cybersecurity program at the University. The most the record shows is that Throop and Caywood were concеrned 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 began, and Burton received the AT&T grant in a public ceremony attended by the provost and vice chancellor of the University. Once again, Burton received tenure within months of this incident and can point to no material
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 chancellor).
So we are left with the task of determining whether the record contains enough evidence for a reasonable jury to conclude that the admitted protected activities were the but-for cause of the admitted adverse actions. Without direct evidence of causation, Burton must rely on circumstantial evidence like suspicious timing, ambiguous statements, treatment of similarly-situated employees, and any other relevant information that could permit an inference of retaliation. See Lambert v. Peri Formworks Sys., Inc.,
We agree with the district court on this point as well. First, the tim
Moreover, the record demonstrates that Throop had a factual basis for each of the allegations she leveled against Burton in the letter of direction, and Burton failed to provide evidence that the allegations were pretextual. Indeed, the district 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 Burton’s explanations for each of them.” Burton,
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 simply argues that Throop should never have written the letter. 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,
III. Conclusion
Professor Burton undoubtedly feels that she has been treated unfairly by some of her superiors at the University because
Affirmed.
Notes
. As Burton conceded at oral argument, the record does not show that Throop or anyone else at the University was aware of the intake questionnaire when the letter of direction was issued.
. 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 аnd Title IX. She also apparently pursues claims only against the Board of Regents, so we will refer to the defendants simply as the Board.
. We follow the parties' briefing in presenting the claims separately under Title IX and Title VII. The parties appear to agree that the facts surrounding the in-class note incident would not state a Title VII claim because of the lack of employment relationship between Burton and the reporting student. We need not- consider whether they are right, because the elements of a Title VII and Title IX retaliation claim are the same.
. Even the comments noting that Burton could have been dean or department chair material if she were not so litigious don't amount to an adverse action. There is no indication that Burton ever sought those positions or that she was otherwise under consideration apart from the stray commеnts. In other words, the comments caused Burton no injury.
. 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,
. 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 particularly harmful to Burton’s claim, because in order to be liable for Title VII retaliation, “the employer must have had actual knowledge of the protected activity” at issue. Nagle v. Vill. of Calumet Park,