In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3126

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.

____________

ARGUED MAY 29, 2008 —DECIDED SEPTEMBER 4, 2008

____________

Before FLAUM, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge. Dr. Kevin Renken, a professor

at the University of Wisconsin-Milwaukee (“University”),

filed a complaint pursuant to 42 U.S.C. § 1983 asserting
2 No. 07-3126

Specifically, Renken sued Dr. William Gregory, CEAS Dean, 1

Dr. William Rayburn, Dean of the Graduate School, Dr. John

Wanat, University Provost and Vice Chancellor for Academic

Affairs, and Dr. Nancy Zimpher, University Chancellor from

1998 until the end of September of 2003. For ease of reference,

we will collectively refer to the defendants as the University.

that University officials had retaliated against him for 1

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
No. 07-3126 3

A principal investigator “is the individual designated by the 2

grantee, and approved by NSF, who will be responsible for

the scientific or technical direction of the project.” NSF Grant

Policy Manual § 210, http://www.nsf.gov/pubs/stis1995/nsf9526/

nsf9526.txt (last visited August 20, 2008). In exchange for his

(continued...)

service to the public, the University, and to the faculty

member’s profession.”). Considerations for full professorship 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 Laboratory by UWM Mechanical Engineering Faculty and Undergraduate 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.2
4 No. 07-3126

(...continued) 2

work as PI, Renken was to receive a reduced teaching load at

the same level of pay.

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
No. 07-3126 5

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 overloaded 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
6 No. 07-3126

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, 2002 letter, the University

had commenced the process of returning the grant

funds to NSF.

Two days later, on August 28, 2002, Renken e-mailed

Judith Temby, Secretary of the University’s Board of

Regents, recounting the difficulties he was having with

Gregory in relation to the grant project. In the correspon-
No. 07-3126 7

dence, Renken stated that Gregory’s office had not provided the lab space or matching funds for the project,

including course release funds. Among other things,

Renken also informed Temby that Gregory wanted Renken

and Reisel to sign off on the letter in which Renken

stated Gregory was proposing using funds in violation

of NSF policies. Renken stated:

the Dean’s office has harassed, discriminated against,

and frustrated our educational and research activities

by delaying/refusing: Personnel Action Forms for PIs

and their undergraduate and graduate students,

External Requisitions to purchase equipment, supplies

and materials, and other expenditure items that were

part of this grant and other grants not associated with

this one which are directed by the Co-PIs. I find the

Dean’s actions unprofessional and vindictive in

nature. The [University] System has no place for

an individual, especially an administrator, who has

little concern for the students and frustrates productive faculty members.

In a letter dated September 9, 2002, Renken also wrote

Dr. Marcia Parsons, chair of the University Committee,

reiterating his complaint made to Snyder, Parsons’s

predecessor, regarding the payment of undergraduates.

Renken again sought an investigation of the non-processing of hourly contracts of undergraduate student assistants. Also in this second complaint, Renken complained

about an allegedly disturbing voicemail left by another

professor on Renken’s answering service, and Gregory’s

statement that the University Committee had advised

Renken and Reisel to sign the May proposal.
8 No. 07-3126

On November 1, 2002, the Dean of the Graduate School,

William Rayburn, presented a compromise proposal to

Renken and Reisel, who, in turn, rejected the compromise.

At this point, the University decided to return the grant

to the NSF.

Renken filed suit in the Eastern District of Wisconsin

asserting a claim under 42 U.S.C. § 1983 asserting a violation of his First Amendment rights. Renken alleged that

the University had reduced his pay and terminated the

NSF grant in retaliation for his exercise of his First Amendment rights when he criticized and complained about the

University’s proposed use of the grant funds. The district

court granted the University’s motion for summary

judgment, concluding that Renken’s complaints about

the grant funding were made as part of his official duties,

rather than as citizen, and therefore were not protected

by the First Amendment. Alternatively, the district court

concluded that if Renken spoke as a citizen and not as

part of his official duties, his speech was still not protected because it related to a matter of private interest,

namely Renken’s teaching and research, and not a

matter of public concern. Renken appeals.

II.

We review a district court’s grant of a motion for summary judgment de novo. Sigsworth v. City of Aurora, 487

F.3d 506, 508 (7th Cir. 2007). Summary judgment is appropriate if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue
No. 07-3126 9

of material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

In order for a public employee to raise a successful

First Amendment claim, he must have spoken in his

capacity as a private citizen and not as an employee.

“[W]hen public employees make statements pursuant to

their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their communications from

employer discipline.” Morales v. Jones, 494 F.3d 590, 595

(7th Cir. 2007) (quoting Garcetti v. Ceballos, 126 S. Ct. 1951,

1960 (2006)). Determining what falls within the scope of

an employee’s duties is a practical exercise that focuses

on “the duties an employee actually is expected to perform.” Id. at 596 (quoting Garcetti, 126 S. Ct. at 1962).

“Formal job descriptions often bear little resemblance to

the duties an employee actually is expected to perform,

and the listing of a given task in an employee’s written

job description is neither necessary nor sufficient to

demonstrate that conducting the task is within the

scope of the employee’s professional duties for First

Amendment purposes.” Garcetti, 126 S. Ct. at 1962. Only

if Renken was speaking as a citizen and not as an employee, will we “inquire into the content of the speech” to

ascertain whether his speech touched on a matter of

public concern to determine whether it is protected

speech. Speigla v. Hull, 481 F.3d 961, 965 (7th Cir. 2007)

(citations omitted).

Renken argues that the tasks that he conducted in

relation to the grant were implemented at his discre-
10 No. 07-3126

tion “while in the course of his job and not as a requirement

of his job.” As a professor, Renken was responsible for

teaching, research, and service to the University. In fulfillment of his acknowledged teaching and service responsibilities, Renken acted as a PI, applying for the NSF

grant. This grant aided in the fulfillment of his teaching

responsibilities because, as Renken notes in his reply

brief, the grant was an education grant for the benefit

of students as “undergraduate education development.”

Moreover, because of his responsibilities as PI, Renken

was entitled to a reduction in his teaching course load.

In his capacity as PI, Renken administered the grant by

filing a signed proposal, including a budget regarding the

proposed grant and University funds involved in the

project, seeking compensation for undergraduate participants, applying for course releases, and noting what

appeared to be improprieties in the grant administration.

Renken complained to several levels of University

officials about the various difficulties he encountered in

the course of administering the grant as a PI. Thereby,

Renken called attention to fund misuse relating to a

project that he was in charge of administering as a University faculty members.In so doing, Renken was speaking

as a faculty employee, and not as a private citizen,

because administering the grant as a PI fell within the

teaching and service duties that he was employed to

perform. See Garcetti, 126 S.Ct. at 1960; Tamayo v.

Blagojevich, 526 F.3d 1074, 1092 (7th Cir. 2008) (noting

that an “official, in so informing the legislators [of irregularities], was discharging the responsibilities of her

office, not appearing as ‘Jane Q. Public.’ Reporting
No. 07-3126 11

alleged misconduct against an agency over which one

has general supervisory responsibility is part of the duties

of such an office.”), Spiegla, 481 F.3d at 967.

We note, too, that whether Renken was explicitly required to apply for grants does not address whether

his efforts related to the grant, including his complaints,

were a means to fulfill his employment requirements,

namely teaching and research. Moreover, Renken chose

to exercise whatever discretion he had in this regard. See

Morales, 494 F.3d at 598 n.3 (7th Cir. 2007). Contrary to

Renken’s urging, “focus[ing] on ‘core’ job functions is too

narrow after Garcetti, which asked only whether an ‘employee’s expressions [were] made pursuant to official

responsibilities.’ ” Spiegla, 481 F.3d at 966 (quoting Garcetti,

126 S. Ct. at 1961).

Along the same lines of his initial argument, Renken

asserts that his speech was outside his employment

because it was “[s]olely by the terms of the Grant, not

his job, [that he] was required to complain if money was

taken by the University.” As we have noted above, the

proper administration of an educational grant fell

within the scope of Renken’s teaching duties at the University, so much so that he would receive a reduction in

his teaching load for serving as a PI for the project. Moreover, in his affidavit filed with the district court, Renken,

himself acknowledged the import of the NSF grant to his

job, stating, “My grants and the projects I develop from

them must be documented and are a major factor considered in earning Full Professorship at [the University].”
12 No. 07-3126

Because Renken’s speech was made as an employee and not a 3

citizen, we need not address whether his speech addressed

a matter of public concern to determine whether it not protected by the First Amendment. 

Renken cites Morales v. Jones, 494 F.3d 590 (7th Cir. 2007),

in support of his contention that his speech was protected because his job duties did not extend to making

formal complaints. In Morales, we held that the statements a police officer made to an assistant district

attorney regarding the harboring of a fugitive by the

chief of police was within the officer’s employment, but

the officer’s statements on the same subject in the

course of a civil lawsuit deposition were made as a

private citizen. Specifically, we stated that “[b]eing deposed in a civil suit pursuant to a subpoena was unquestionably not one of Morales’ job duties because it was

not part of what he was employed to do.” Id. at 598. Here,

by Renken’s own admission, his employment status a

full professor depended on the administration of grants,

such as the NSF grant. It was in the course of that administration, that Renken made his statements about

funding improprieties within the confines of the

University system and as the principal PI. Therefore,

Morales does not support Renken’s contention that his

speech is protected. Because Renken’s speech is not

3

protected, his First Amendment claim fails.
No. 07-3126 13

III.

Renken made his complaints regarding the University’s

use of NSF funds pursuant to his official duties as a

University professor. Therefore, his speech was not

protected by the First Amendment. The district court

properly granted summary judgment in favor of the

University, and we AFFIRM.

9-4-08