Opinion
No. 98 C 7968.
September 29, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Alfreda Eddings ("Plaintiff") filed this suit against the Board of Trustees of Community College District No. 508 and Raymond LeFevour ("Defendant"), in his capacity as President of Wright College, alleging racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. and violation of the Civil Rights Act of 1871, 42 U.S.C. § 1981. Specifically, Plaintiff alleges that she was denied a promotion from the rank of associate professor to full professor and was retaliated against after she filed a charge of discrimination with the Illinois Department of Human Rights in 1997. Defendant now moves for summary judgment, arguing that it took no adverse action against Plaintiff and that Plaintiff cannot establish a prima facie case of race discrimination. Finally, in a supplement to its motion, Defendant argues that Plaintiff is precluded from bringing certain claims in this action pursuant to 28 U.S.C. § 1738, because they were decided by the Illinois Appellate Court decision in Eddings v. LeFevour, No. 1-99-1712 (6/21/00).
FACTUAL BACKGROUND
A. Plaintiff's Work History
Plaintiff Alfreda R. Eddings, an African American, began working for City Colleges in 1984. (Defendant's Statement of Material Facts as to Which There is No Genuine Issue [hereinafter Def.'s 56.1 Statement] ¶ 3.) City Colleges are comprised of seven community colleges located throughout the City of Chicago. ( Id. ¶ 2.) Plaintiff worked for Loop College (later renamed as Harold Washington College), until she transferred in August of 1995 to Wright College, another City College. ( Id. ¶¶ 3, 4.) She has been a full time member of the Speech Department faculty at Wright College since that time. ( Id. at ¶ 4.) Defendant, Raymond LeFevour, was President of Wright College at all times relevant to this litigation. (Def.'s 56.1 Statement ¶ 6.)
There are four levels of academic rank in the City Colleges system: instructor, assistant professor, associate professor, and professor. ( Id. ¶ 8.) Plaintiff started at the Harold Washington College as an instructor, and then achieved the rank of assistant professor and, finally associate professor. ( Id. ¶ 3.) In both 1996 and 1997, Plaintiff applied for but was denied promotion from assistant professor to full professor. (Complaint ¶ 9). In May of 1997, Plaintiff filed a charge of discrimination with the Illinois Department of Human Rights against Defendant for failing to promote her. (Plaintiff's Statement of Additional Facts Not in Dispute [hereinafter "Pl.'s 56.1 Statement of Additional Facts"] ¶ 1.) Finally, on February 6, 1998, Plaintiff applied for a final time for promotion and Defendant once again denied her the promotion. (Def.'s 56.1 Statement ¶ 7.) She is currently employed at Wright College as an associate professor.
The record does not say when Plaintiff achieved each of these positions, except to say she achieved them all before she moved to Wright College in August of 1995.
The procedural steps involved in the rank promotion process are contained in a Board policy entitled "Procedural Guidelines for Promotion in Rank" while the standards for promotion in academic rank are contained in a Board policy entitled "Criteria for Promotion in Rank." (Def.'s 56.1 Statement ¶ 12.)
Faculty members seeking promotion must submit an application, along with any corroborating documentation, to the President of the College. ( Id. ¶ 13.) Applications are then forwarded to and evaluated by the departmental committee. ( Id.) The committee's recommendation is forwarded to the College Rank Promotions Committee and to the College President. ( Id.) According to Plaintiff, in addition to the department committee, the college committee, and the college president, a recommendation must also be made by the department chairperson. (Plaintiff's Rule 12(N) Statement, Response to Defendant's Rule 12(m) Statement [hereinafter "Pl.'s 56.1 Response Statement."] ¶ 13.)
The President and the College Rank Committee independently rates each candidate according to the following scale: Strongly Recommended, Recommended, Questionable, Not Recommended. (City Colleges of Chicago Academic Policy, Ex. C ¶ 2.) Candidates who receive not recommended or "questionable" ratings from both the College Rank Promotions Committee and the College President are rejected at that step. ( Id. ¶ 4.) The local College Rank Promotions Committee and the President then "meet jointly to discuss all candidates rated Strongly Recommended or Recommended by either or both." ( Id. ¶ 5.) The President's recommendation is determinative of whether an application receives a promotion. (LeFevour Dep., at 37.)
The College Rank Promotions Committee consists of six to eight tenured faculty members. (Def.'s 56.1 Statement ¶ 15.) The members of the committee are elected by the full-time faculty members of the college. ( Id.) Neither LeFevour nor Dr. Charles Guengerich served on the College Rank Promotions Committee. ( Id.)
A professor's rank in the City Colleges system — instructor, assistant professor, associate professor or full professor — does not necessarily correspond with the professor's salary at City Colleges. (Def.'s 56.1 Statement ¶ 9.) Instead, salary levels for Wright College faculty are subject to a collective bargaining agreement which establishes there are four "pay lanes" (I, II, III and IV). ( Id. ¶ 11.) A faculty member's advancement in academic rank has no bearing on the faculty member's lane placement or salary step or salary. ( Id.) Despite this fact, Plaintiff asserts that promotion to full professor carries with it substantial economic and professional benefits and also has substantial impact on working conditions for faculty at the College. (Eddings Dep., at 11-12.) Defendant insists, however, that academic rank at Wright College is not related to salary, teaching assignments, committee assignments, classroom assignments, or any other working condition of faculty members. (Def.'s 56.1 Statement ¶ 10.)
C. Plaintiff's Application and Qualifications for Promotion
Plaintiff and Defendant agree that all full-time faculty members are required to do more than merely teach classes. (Def.'s 56.1 Statement ¶ 5.) Other duties of the faculty include registration, departmental meetings, attendance at meetings called by the College President or Chancellor, and student conference hours. ( Id.) Faculty members are also required to be on campus to fulfill these obligations. ( Id.) These obligations are expressly recognized in the collective bargaining agreement governing faculty, including Plaintiff. ( Id.)
There are four general categories of qualifications for promotion in rank: (I) experience and length of service; (II) performance in teaching; (III) performance as a member of the college; and (IV) professional growth. ( Id. ¶ 17.) Each time that Plaintiff was rejected for promotion, she was rejected based on the third criterion, "performance as a member of the college." ( Id. ¶ 24.)
To assess how well they satisfy this criterion, candidates are evaluated in the following areas: (a) work on faculty and other college committees, (b) participation as a faculty unit member, and (c) interest in students. (Def.'s 56.1 Statement ¶ 18.) In support of her application for promotion in 1998, Plaintiff listed the following activities reflecting her service to the college: (1) Academic Affairs Committee; (2) pre-registering 25 + students each term; (3) Coordinator of Speech Department Video Resource; (4) Speech Department Cultural Diversity Committee; (5) Speech Department Assessment Report Coordinator; (6) Speech Department representative for system-wide conference; (7) Speech Department representative and presenter at African American History Awards Program and Hispanic Heritage Banquet. (Def.'s 56.1 Statement ¶ 19.)
Defendant asserts that these qualifications were not enough to satisfy the service to the college criterion for promotion. ( Id. ¶ 24.) According to Defendant, though Plaintiff was appointed to the Academic Affairs Committee in 1996, Plaintiff was absent from two out of the four Academic Affairs Committee meetings from September 1997 until she was denied the promotion on February 6, 1998. ( Id. ¶ 20.) Defendant also asserts that all faculty members participate in pre-registration activities and that the title "Coordinator of Speech Department Video Resource" is not a recognized position within the Speech Department of Wright College. ( Id. ¶¶ 21, 22.) Finally, Defendant contends that the Speech Department Cultural Diversity Committee met only once a year and that Plaintiff cannot identify any activities that committee coordinated since she became a member. ( Id. ¶ 23.)
The record does not say how many meetings took place, or whether Plaintiff attended them, from the time she was appointed in 1996 until September of 1997.
Plaintiff claims that, although she missed two out of the four meetings for the Academic Affairs Committee, these absences were excused. (Eddings Aff. ¶ 7.) In addition, Plaintiff points out that she was reappointed to the committee despite her absences. ( Id.) Plaintiff also presents two memos to show that she was in fact working with video resources for the Speech Department. ( See, Plaintiff's Rule (N) Statement, Ex. D, 9-10.)
Though Plaintiff's affidavit is used to flesh out the facts, it is not sufficient to create a dispute of material fact because it was not notarized. See, supra Discussion Section B.
These memos are both written by Plaintiff but provide little information as to what Plaintiff was doing in this position. ( See, Plaintiff's Rule (N) Statement, Ex. D, 9-10.) One memo, dated February 27, 1996, simply says, "I have received resource materials for the Department of Speech video library. Where would you like to have these resources housed? Please advise." ( Id.) In the second memo, Plaintiff reports that she had obtained some transparencies that go with a textbook used in Speech 101, and that anyone interested in reviewing those memos should contact her. ( Id.)
After the College Rank Promotions Committee reviewed Plaintiff's application, it rated her "not recommended." (Def.'s 56.1 Statement ¶ 24.) In a February 24, 1997 memorandum, LeFevour notified Plaintiff that he did not recommend her for promotion for two reasons: (1) Plaintiff's application was not supported by the College Rank Promotions Committee and (2) in LeFevour's judgment, Plaintiff's application did not demonstrate a history of college-wide involvement at the level expected for a promotion. ( Id. ¶ 24.) LeFevour admitted, however, that he had no personal knowledge of Plaintiff's qualifications when he chose not to recommend her for promotion. (LeFevour Dep., at 37.) He did not even sign the negative recommendation, but had Mr. Guengerich sign it for him. ( Id.) Finally, LeFevour did not consult with anyone regarding Plaintiff's service to the college prior to refusing to recommend her for promotion in 1998. (Pl.'s 56.1 Statement of Additional Facts ¶ 10.)
Mr. Guengerich is currently the acting president of City Colleges. The record does not say what his position was in February 1998.
D. Failure to Promote African American Candidates
Plaintiff alleges that LeFevour did not promote other African American candidates to full professor. There were four African American candidates who applied for promotion from Associate Professor to Full Professor under the entire time LeFevour was President: Bonita Ellis, Bernice James, Loisjean Komai-Thompson and Plaintiff. (Def.'s 56.1 Statement ¶¶ 26-29.) Each of these individuals was originally turned down for promotion for the same reason that Plaintiff was not granted a promotion: lack of college wide service. (Pl.'s 56.1 Statement of Additional Facts ¶ 9.)
Plaintiff objects to these portions of Defendant's 56.1 Statement that cite to the Affidavit of Guengerich, because she alleges that he has no personal knowledge about the various candidates. (Pl.'s 56.1 Response Statement ¶¶ 26-28.) Guengerich's affidavit does not explain what he is relying on for this information, aside from the promotion of Ron Subeck and Ron Wietecha. (Guengerich Aff. ¶¶ 23-27.) For those promotions, he cites to a copy of the Board Report that merely states these candidates were promoted, but does not furnish any details. ( Id. at ¶¶ 26-27, Ex. G.) She also objects to Defendant's assertion that these were the only four African American applicants to apply for promotion from associate professor to full professor, because LeFevour stated at his deposition that he could not remember the races of applicants he had approved or rejected. (LeFevour Dep., at 76-78.) Plaintiff does not, however, present any contradictory evidence to show that more than these four African Americans applied for promotion.
Neither Plaintiff nor Defendant provide any more information about the actual committees or activities these faculty members were involved with, nor does the record say anything about the individual applications these faculty members submitted.
Defendant points out, however, that both Ellis and James never reapplied for the promotion, whereas Loisjean Komai-Thompson, who first applied in 1995, was eventually awarded the promotion to full professor in February of 1997. (Def.'s 56.1 Statement ¶¶ 26-28.) According to Defendant, she was awarded the title after increasing her service to the college. ( Id.) Komai-Thompson's 1997 application included the following: (1) sponsorship of Phi Theta Kappa; (2) chairperson of the English 101 committee; (3) coordinator of the African American essay program; (4) co-author of a reading text used by the college. ( Id.) Plaintiff points out that Komai-Thompson was promoted only after Plaintiff filed her charge of discrimination.
E. Non-Black Candidates Who Were Promoted
Plaintiff also alleges that she had qualifications greater than or equal to the white faculty members who were promoted to professor. (Eddings Dep., at 26-29.) These professors included: Ronald Wietecha, Ronald Subeck, Marlys Styne, Jane Wagoner and Ginia Jahrke. (Def.'s 56.1 Statement ¶ 30.) Wietecha was promoted to professor in April, 1986 and Subeck in April 1984, before LeFevour became President of the College. ( Id. ¶¶ 31-32.)
Again, Plaintiff objects to the information provided on each candidate by Guengerich, because she asserts that he did not have personal knowledge of any of this information. (Pl.'s 56.1 Response Statement ¶¶ 31-35.) She does not, however, provide any information that contradicts these facts.
Styne, a member of the English Department, was promoted to professor in 1987. ( Id. ¶ 33.) Her application included the following activities: (1) membership and two years as chairperson of the Academic Affairs Committee; (2) Faculty Director of the Microcomputer Laboratory; (3) Faculty Director of Testing and Tutoring; (4) six published papers; (5) two presentations at conferences on poetry; (6) chairperson of the English 101 Committee; and (7) member of the Student Relations Committee. ( Id.) Styne applied for and was granted a waiver of the 60-hour requirement based on her record of activities. ( Id.)
It is not clear from the record what this sixty hour requirement is.
Wagoner, a member of the Speech Department, was promoted to professor in 1996. ( Id. ¶ 34.) Her application included the following: (1) chairperson of Phi Theta Kappa membership; (2) sponsor of the Wright Side Editorial Board; (3) co-sponsor of the Wright Side Literary Magazine; (4) chairperson of the English 098 Committee; and (5) member of the Composition 101 and 102 committees. ( Id.) in addition, Wagoner conducted three workshops in the Computer Writing Center. ( Id.)
Jahrke, a member of the Psychology Department, was promoted to professor in 1999. ( Id. ¶ 35.) Her application included the following: (1) faculty advisor to Phi Theta Kappa; (2) chairperson of Writing Across Curriculum Committee; (3) chairperson of the Student Enrollment Committee; (4) chairperson of the Stu Boehm Scholarship Committee; (5) member of the Union Scholarship Committee; (6) member of the College-Wide Promotions Committee; (7) member of the Departmental Evaluation Committee; (8) member of the Psychology Committee; and (9) member of the Multi-Culturalism Committee. ( Id.)
F. Acts Occurring After Plaintiff filed her Initial Charge of Discrimination
In addition to being denied a promotion in 1996 and 1997, Plaintiff alleges that a number of retaliatory acts were taken against her after she filed her charge of discrimination with the Illinois Department of Human Rights in May 1997. (Pl.'s 56.1 Response Statement ¶ 37.) Specifically, Plaintiff alleges that (1) she was denied a promotion in February of 1998; (2) LeFevour repeatedly initiated disciplinary investigations against her; (3) Defendant authorized his vice president to post a disciplinary meeting notice on Plaintiff's office door; (4) Defendant scheduled disciplinary meetings on Friday because he knew this was the day that Plaintiff was not in; (5) Defendant deducted days of pay from Plaintiff's leave bank for frivolous matters; (6) he punished Plaintiff by denying her request for early shift registration; (7) he sent his clerk to her classroom to hand deliver notices; (8) he switched Plaintiff's classroom after the semester began; (9) he directed the dean of instruction to investigate a sick day taken by Plaintiff; (10) he suspended Plaintiff for using her leave days during registration week; and (11) he suspended Plaintiff during spring break instead of suspending her during registration week. ( Id.) She also alleges that at a pre-hearing conference regarding that charge of discrimination, Defendant told her he would "not forget" the charge nor would he forget her conduct in causing him to answer such charges. (Pl.'s 56.1 Statement of Additional Facts ¶ 2). Plaintiff also alleges that in 1999, Defendant recommended that she be suspended for a full semester without pay because she failed to attend a registration session at the college. ( Id. ¶ 11.) According to Plaintiff, Defendant claimed that attendance at registration is essential for faculty members, but nevertheless imposes disciplinary suspensions during registration. ( Id.) Finally, Plaintiff maintains that this suspension caused her to lose her salary, benefits, service time and pension benefits. ( Id. ¶ 14.)
Defendant answers Plaintiff's claims of retaliation as follows: Defendant ordered the Dean of Instruction, Donald Barshis, to investigate Plaintiff's use of a sick day on the day before Thanksgiving 1998 because Plaintiff had a history of abuse with respect to the use of sick and personal leave days. (Def.'s 56.1 Statement ¶ 46.) That investigation did not result in any disciplinary action. ( Id.)
Defendant also alleges that the disciplinary meetings scheduled with Plaintiff were related to her use of sick and personal leave time during registration week, when she was required to work. ( Id. ¶ 39.) He explains that most meetings are held on Fridays because a majority of the faculty members do not have to teach classes on Fridays and, points out that, in any case, faculty members are expected to be available for work Monday through Friday. ( Id. ¶ 41.) Defendant also contends that Plaintiff does not have any evidence that Lefevour personally directed that Guengerich post the notice on Plaintiff's door. ( Id. ¶ 40.) Defendant explains that he took days from Plaintiff's leave bank because she missed several disciplinary hearings, at one point four times in a row. ( Id. ¶ 41.) Attendance at meetings called by the college president is mandatory, and any faculty member who does not attend such a meeting must record his/her absences. ( Id.) Defendant also asserts that the reason Plaintiff was not allowed to switch her registration schedule was because she did not find someone to switch with her. The policy for switching registration work schedules requires the faculty member to notify the department chairperson and find someone who is willing to switch registration work hours with that faculty member. ( Id. ¶ 43.)
Defendant explained that he had notices hand delivered to Plaintiff's classroom both because Plaintiff does not regularly pick up her mail from her Main Office mailbox and because Plaintiff had "frequent absences" from required meetings. ( Id. ¶ 44.) Finally, Defendant explained that the room change was made to accommodate a new humanities class. ( Id. ¶ 45.)
G. Procedural History
In May 1997, Plaintiff filed a discrimination charge with the Illinois Department of Human Rights ("Department") against Defendant for failing to promote her in February of 1997 due to her race. (Pl.'s 56.1 Statement of Additional Facts, ¶ 1.) Plaintiff once again applied for a promotion and her application was denied on February 6, 1998. (Def.'s 56.1 Statement ¶ 7.)
In May 1998, the Department dismissed the Plaintiff's discrimination charge after concluding that there was a lack of substantial evidence to support the claim. The following month, Plaintiff filed a request for review with the chief legal counsel of the Department. In April 1999, the chief legal counsel of the Department issued an order sustaining the dismissal. Plaintiff appealed this decision to the Appellate Court of Illinois, First Judicial District, which affirmed the Department's decision on June 21, 2000.
Plaintiff also filed charges against the Defendant with the United States Equal Employment Opportunity Commission ("EEOC") on July 30, 1998. On September 15, 1998, the EEOC issued Plaintiff a right-to-sue letter. Plaintiff filed this suit in federal court on December 11, 1998.
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); see also Flores v. Preferred Tech. Group, 182 F.3d 512, 514 (7th Cir. 1999). In determining the existence of material facts) the court must examine the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. Flores, 182 F.3d at 514. An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Carter v. American Oil Co., 139 F.3d 1158, 1161 (7th Cir. 1998.)
Further, the Seventh Circuit has recognized that courts must apply the summary judgment standard with rigor in employment discrimination cases because "motive, intent and credibility are crucial issues." Crim v. Board of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Nonetheless, noting that employment discrimination cases are not governed by a separate rule of civil procedure, the Seventh Circuit recognizes that summary judgment may be appropriate so long as there is no genuine dispute as to the material facts. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394 (7th Cir. 1997). The point is simply that "courts should be careful in a discrimination case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of an intent often though not always will be." Id. at 1396.
B. Plaintiff's Affidavit
In Plaintiff's Rule 12(N) Statement, she attaches an affidavit that is signed by her but not notarized. Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits opposing summary judgment "set forth such facts as would be admissible in evidence," and that copies of any papers or parts of papers referred to in an affidavit must be "sworn or certified." The requirement in Rule 56(e) that an affidavit be "sworn" requires more than just the use of the word "sworn"; the affidavit must be sworn before an officer authorized to administer an oath (such as a notary public). See Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985); see also Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1169 (7th Cir. 1996) (referring to sworn statements as ones made under oath). An unsworn declaration may substitute for an affidavit only if it subjects the declarant to penalties of perjury. See 28 U.S.C. § 1746; DeBruyne v. Equitable Life Assur. Soc'y, 920 F.2d 457, 471 (7th Cir. 1990); Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987). Statements that are "neither notarized nor made under penalty of perjury [do] not comply with Rule 56(e). . . . As such, we can simply ignore them." Gilty v. Village of Oak Park, 919 F.2d 1247, 1255 n. 13 (7th Cir. 1990). Accordingly, exhibits attached to such informal declarations which are not otherwise verified are not properly authenticated as required by Rule 56(e) and also cannot be considered. See Friedel, 832 F.2d at 970. See, e.g., Rogers v. Ford Motor Co., 952 F. Supp. 606, 611 (N.D.Ind. 1997) (granting a motion to strike documents which had not been authenticated by affidavit or otherwise verified). Because Plaintiff's affidavit has not been notarized, the information it contains and the exhibits attached to it cannot be considered in deciding this summary judgment motion.
C. Res Judicata
Defendant argues that Plaintiff cannot establish that she was a victim of race discrimination or retaliation and that Defendant is entitled to summary judgment on this basis. In a supplementary memorandum, Defendant has argued, further, that Plaintiff's claims are barred under the doctrine of res judicata by an order of the Illinois Appellate Court affirming the decision of the Illinois Department of Human Rights to dismiss Plaintiff's charge of discrimination. Eddings v. LeFevour, No. 1-99-1712 (1st Dist. June 21, 2000). Indeed, under 28 U.S.C. § 1738, federal courts are required to give state court judgments full faith and credit. In the employment discrimination context, the courts have held that the decision of a state court affirming an administrative determination is entitled to full faith and credit; thus, dismissal of an employment discrimination claim by a state court requires the same result in this court. See generally University of Tennessee v. Elliott, 478 U.S. 788 (1986), Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 (1982).
For two reasons, the court concludes res judicata principles do not require dismissal of this case. First, in her charge filed with the Department of Human Rights, Plaintiff complained of Defendant's decision to deny her promotion in 1997. This case challenges not only that decision, but also the decision to deny promotion a year later. Although Plaintiff makes similar arguments and refers to at least some of the same colleagues as comparatives, the fact that Defendant made an independent decision in 1998 renders this claim distinct from the one dismissed by the Department of Human Rights. Second, Plaintiff's complaint before this court raises, in addition to her race discrimination claim, a claim that Defendant retaliated against her for her previous charge. This claim was never considered by the Department of Human Rights and therefore not addressed by the state court's decision. Defendant's motion for summary judgment on this basis is, therefore, denied.
D. Adverse Employment Action
In order to prevail in an employment discrimination case under Title VII, a plaintiff must prove that the employer made an adverse employment decisions with respect to her because of her race or color. Patel v. Allstate Ins. Co., 105 F.3d 365, 379 (7th Cir. 1997). As an initial matter, the court must determine whether Defendant's failure to award the title of professor to Plaintiff constitutes an actionable adverse employment action. To constitute an adverse employment action, Plaintiff must suffer a materially adverse impact to her employment or be denied a material employment benefit. Crady v. Liberty National Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).
Whether an employee has suffered a materially adverse employment action will normally depend on the facts of each situation. Bryson v. Chicago State University, 96 F.3d 912 (7th Cir. 1996). A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, or other indices that might be unique to a particular situation. Crady, 993 F.2d at 136.
Defendant argues that denying a title does not, on its own, constitute adverse action. See Crady, 993 F.2d at 136 (no adverse action where vice president of bank was transferred to another position without the VP title at the same management-level position, with the same salary and benefits and with different, though not less significant, responsibilities); see, also Spring v. Sheboygan Area School District, 865 F.2d 883 (7th Cir. 1989) (no adverse action where principal is transferred to co-principal at another school). Significantly, none of the cases Defendant cites to took place in a university setting.
In university settings, the Seventh Circuit has noted that the "subtle indicia of job status and reward . . . may, in a particular institution, take on an importance that may be far greater in context than would appear on the outside — indicia like honorary or in-house titles" even when those titles have "no budgetary effect." Bryson, 96 F.3d at 916-17. In Bryson, the court found that the loss of plaintiff's in-house title and her banishment from committee work could constitute an adverse action, even though plaintiff lost no salary with her title. Id. at 916. The court reasoned that Bryson's evidence that her title "conferred prestige" and was important to "further professional advancement" was enough to constitute an adverse action. Id. at 916. As the court explained, "[t]he title . . . would communicate to others both within the State Colleges and Universities system and outside it what kind of responsibilities had been entrusted to her."
Here, similarly, Plaintiff's promotion denied her the title of full professor, a title that Plaintiff alleges carries substantial economic and professional benefits, and has substantial impact on working conditions for faculty at the college. The court therefore finds that Plaintiff has raised a dispute of fact as to whether she suffered an adverse action.
E. Race Discrimination Claim
In analyzing claims of intentional discrimination in employment decisions under both section 1983 and Title VII, the court uses the templet from McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. CT. 1817, 36 L.Ed.2d 668 (1973); Dugan v. Ball State Univ., 815 F.2d 1132, 1135-6 (7th Cir. 1987). Under this approach, Eddings must first establish a prima facie case by showing that (1) she is the member of a protected class, (2) she applied for and was qualified for the position in question, (3) she suffered an adverse employment action by that rejection and (4) that Defendant denied the promotion under circumstances giving rise to an inference of discrimination. Id.; Leffel v. Valley Financial Services, 113 F.3d 787, 793-94 (7th Cir. 1997.) If Plaintiff can establish a prima facie case of discrimination, a presumption of discrimination arises and the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. Dugan, 815 F.2d at 1136. If the employer articulates such a reason, the presumption dissolves and Plaintiff must prove by a preponderance of the evidence that the employer's proffered reason was a pretext. Id. Oates v. Discovery Zone, 116 F.3d 1161, 1170 (7th Cir. 1997). Because the court finds that Plaintiff cannot establish Defendant's reasons for failing to promote her were pretextual, it is not necessary to decide whether Plaintiff has in fact established a prima facie case of discrimination.
Defendant asserts that Plaintiff was denied promotion from associate professor to full professor for two reasons: (1) Plaintiff's application was not supported by the College Rank Promotions Committee; and (2) according to LeFevour, Plaintiff's application did not demonstrate a history of college-wide involvement at the level expected for a promotion.
Plaintiff takes issue with LeFevour's assertion that she did not demonstrate college-wide involvement. According to Plaintiff, her application for promotion was equal to or greater than some of the white faculty who were promoted by LeFevour. In support of this argument, Plaintiff points out her own application qualifications and compares them to those of colleagues who were promoted. After reviewing both Plaintiff's qualifications and those of the faculty members who were promoted, the court concludes that Plaintiff has not created a dispute of fact on this issue.
The information about the various white candidates who were promoted came from the affidavit of Charles Guengerich, the current acting president of City Colleges. Plaintiff objected to using this information on the basis that Guengerich had no personal knowledge of these applications. In his deposition, however, Guengerich states that as part as his position as vice president (and now as acting president) he was "involved in the . . . evaluation of faculty." (Guengerich Dep., at 12.) The court finds that he did, therefore, have personal knowledge of each of these applications.
Specifically, Plaintiff had the following college-wide involvement activities on her resume: (1) member of the Academic Affairs Committee and the Speech Department Cultural Diversity Committee; (2) Speech Department representative and presenter at the African American History Awards Program and Hispanic Heritage Banquet and representative for the Speech Department for a system wide conference; (3) Speech Department Assessment Report Coordinator; (4) Coordinator of Speech Department; and (5) she registered 25 + students each term.
Defendant argues that not all of these qualifications are valid. To begin with, Defendant asserts that there was no recognized title of "Coordinator of Speech Department Video Resource." Plaintiff provides some exhibits to show she was working in this capacity, but, these exhibits are attached to her unsworn affidavit and therefore cannot be considered. Defendant does not, however, dispute that Plaintiff worked with these video resources, so the court will assume that Plaintiff worked with the Speech Department resources, without determining whether or not she actually was any sort of "coordinator." Defendant also asserts that all faculty are responsible for registration, so this is not an extra activity. Finally, Defendant says that Plaintiff did not come to two of the four Academic Committee meetings and that Plaintiff cannot identify any activities for which the Diversity Committee was responsible. Whether or not Defendant's arguments are correct is dispositive of this issue, because the court finds that Plaintiff has not shown that her application was equal to or greater than the applications of the other faculty members who were promoted.
The white faculty members who were promoted during LeFevour's administration include Marlys Styne, Jane Wagoner and Ginia Jahrke. Without going into the merits of one committee over another, the court recognized differences between these applications and Plaintiff's. To begin, each of these faculty members served as a chairperson of two or more committees, whereas Plaintiff was not the chairperson of any committee. Styne, in addition to chairing two committees, was the Faculty Director of the Microcomputer Laboratory and of Testing and Tutoring, wrote six published papers, gave two presentations on poetry and was a member of the student relations committee. Wagoner was a sponsor of the Wright Side Editorial Board, co-sponsor of the Wright Side Literary Magazine, member of the Composition 101 and 102 committees, and conducted three workshops in the Computer Writing Center, in addition to chairing two committees. Finally Jahrke, in addition to chairing three committees, was the faculty advisor to Phi Theta Kappa and a member of the Union Scholarship Committee, College-Wide Promotions Committee, Departmental Evaluation Committee, Psychology Committee and the Multi-Culturalism Committee. On their face, reliance on these qualifications as a basis for distinguishing these candidates from Plaintiff does not reflect pretext. The court notes that although Plaintiff asserts that she was as, if not more, qualified than these faculty members to become a full professor, she does not say what specifically in her application makes her more qualified. The court therefore finds that because Plaintiff cannot meet her burden of proving Defendant's reasons were pretextual, she has not presented a material dispute of fact as to her failure to promote claim that would preclude summary judgment.
Plaintiff also introduces information about Ronald Wietecha and Ronald Subeck, but because both men were promoted to full professor before LeFevour became president, the court concludes that their qualifications are irrelevant.
Styne was the chairperson of the Academic Affairs Committee and the English 101 Committee, Wagoner was the chairperson of Phi Theta Kappa membership and the chairperson of the English 098 committee, and Jahrke was the chairperson of the Writing Across Curriculum Committee, Student Enrollment Committee and the Stu Boehm Scholarship Committee.
F. Retaliation
In order to establish a prima facie case of Title VII retaliation, a plaintiff must show that 1) she engaged in statutorily protected expression; 2) she suffered an adverse action by her employer; and 3) there is a causal link between the protected expression and the adverse action. Mather v. Board of Trustees of Southern Illinois Univ., 207 F.3d 938, 941-42 (7th Cir. 2000). In order to demonstrate the "causal link," the plaintiff must demonstrate that the employer would not have taken the adverse action "but for" the protected expression. Johnson v. University of Wisconsin Eau Claire, 70 F.3d 469, 479 (7th Cir. 1995). Under the McDonnell Douglas burden-shifting analysis, after the plaintiff establishes a prima facie case, the burden of production shifts to the defendant employer to come forward with a legitimate, non-retaliatory reason for its actions. Id. (citing Griffin v. Board of Regents of Regency Univ., 795 F.2d 1281, 1294 (7th Cir. 1986). If the defendant rebuts the plaintiff's prima facie case in this manner, the plaintiff then has a chance to show that the defendant's proffered reasons are pretextual. Id. The ultimate issue is whether there was "sufficient evidence for a reasonable finder of fact to conclude that the official reason for [plaintiff's] discharge was pretextual, and that the true reason therefore was retaliation for her complaints of discrimination." Mather, 207 F.3d at 942.
Plaintiff alleges that she was retaliated against for filing a charge of discrimination with the Illinois Department of Human Rights. Specifically, Plaintiff alleges that (1) she was denied a promotion in February of 1998; (2) Defendant repeatedly initiated disciplinary investigations against her; (3) Defendant authorized his vice president to post a disciplinary meeting notice on her office door; (4) Defendant scheduled disciplinary meetings on Friday because he knew this was the day that she was not in; (5) he deducted days of pay from Plaintiff's leave bank for frivolous matters; (6) he punished Plaintiff by denying her request for early shift registration; (7) he sent his clerk to her classroom to hand deliver notices; (8) he switched Plaintiff's classroom after the semester began; (9) he directed the Dean of Instruction to investigate a sick day taken by Plaintiff; (10) he suspended Plaintiff for using her leave days during registration week; and (11) he suspended Plaintiff during spring break instead of suspending her during registration week. ( Id.) Plaintiff also alleges that in 1999, Defendant recommended that she be suspended for a full semester without pay because she failed to attend a registration session at the college. (Pl.'s 56.1 Statement of Additional Facts ¶ 11.) Finally, she alleges that at a pre-hearing conference regarding that charge of discrimination, Defendant told her he would "not forget" the charge nor would he forget her conduct in causing him to answer such charges. ( Id. ¶ 2).
The court finds that each of these instances fail to establish a claim of retaliation, either because Plaintiff suffered no adverse employment action or because Plaintiff cannot show that Defendant's reasons for taking the action were pretextual. Several of the instances in question are simply not significant: For example, Plaintiff claims that LeFevour initiated disciplinary investigations against Plaintiff, authorized his vice president to post a disciplinary meeting notice on her door, scheduled meetings on Fridays when Plaintiff wasn't in, denied her request for early shift registration, sent his clerk to her classroom to hand deliver notices, switched Plaintiff's classroom after the semester began, and investigated a sick day taken by Plaintiff. None of these instances appears to constitute adverse action, as none resulted in any disciplinary action taken against Plaintiff. She did not lose money or days of teaching, nor was she suspended as a result of any of these actions.
In addition, Plaintiff cannot show that the reasons given by Defendant for these and other actions are pretextual. LeFevour explained that he ordered an investigation into Plaintiff's use of leave days because of a history of abusing the leave policy, and he hand delivered certain notices because Plaintiff did not always pick up her mail. He also explained that most meetings are held on Fridays because a majority of the faculty members do not teach classes on Fridays. Finally, he explained that the room change was necessary to accommodate a humanities class and had nothing to do with Plaintiff. Plaintiff has offered no evidence to cast doubt on these explanations.
Though Plaintiff does rebut some of Defendant's explanations, much of her rebuttal evidence is in her unsworn affidavit, and, as such, cannot be considered by the court. For example, Plaintiff's assertion that she always picks up her mail so that it need not be delivered to her door, is found in her affidavit. The court notes that such action did not constitute adverse action, so would nonetheless fail to state a claim for retaliation.
The other allegations of retaliation may constitute adverse action, but, again, Plaintiff cannot show that Defendant's reasons for taking the action were pretextual. These include that Defendant failed to promote Plaintiff in 1998, that he deducted days of pay from Plaintiff's leave bank, that he suspended her for using her leave days during registration week and required that she take that suspension during spring break, and that he suspended her for a full semester without pay because she failed to attend a registration session at the college.
As previously discussed, however, Plaintiff presents nothing that would show that Defendant's reasons for suspending and taking leave from her pay bank (namely, that she continued to have unexcused absences) were not true or were pretext. Finally, the court is not persuaded that because the Defendant had some faculty members take their suspension during registration it constituted retaliation for Plaintiff to be required to serve her suspension during spring break. Clearly it is best for the university if faculty members take their suspension at a time when it will not affect the students, as Defendant alleges. The fact that a few faculty members did not take their suspension at that time in the past does not show that Defendant's actions were motivated by retaliation as opposed to the best interest of the university.
The one act of retaliation which has not been clearly explained by the Defendant is Defendant's decision to suspend Plaintiff for one semester in 1999 after she failed to show up for registration. In her unsworn affidavit, Plaintiff maintains that those days were, in fact, excused. Because we cannot consider her affidavit, Plaintiff has not offered enough evidence to rebut Defendant's reason. The court notes, however, that the events in question are not entirely clear from the record, in part because Defendant assumes the suspension is not part of Plaintiff's complaint in this case. Defendant has not explained clearly why Plaintiff was suspended, other than to say that she missed registration. He has not told the court whether such a suspension comes automatically after missing several unexcused days or whether it was the culmination of Plaintiff's absences that led to the decision to suspend her for a semester. Nevertheless, because Plaintiff's affidavit cannot be used to answer this reason, she has established no proof that would show this reason was pretextual on Defendant's part. The court notes that it would entertain a motion to reconsider on this issue, provided the Plaintiff notarized her affidavit, which would give both sides the opportunity to explain the events clearly.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment (Doc. 17-1) is granted.