Otis Grant v. Trustees of Indiana University, et al
Filed opinion of the court by Judge Williams. AFFIRMED. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and Ann Claire Williams, Circuit Judge. [6865686-1]  [16-1958]
United States Court of Appeals
For the Seventh Circuit
OTIS B. GRANT,
THE TRUSTEES OF INDIANA UNIVERSITY, ET AL.,
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-00826-TWP-DML — Tanya Walton Pratt, Judge.
ARGUED SEPTEMBER 29, 2016 — DECIDED AUGUST 31, 2017
Before WOOD, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. The University of Indiana South
Bend dismissed tenured Professor Otis Grant in 2011 for “serious misconduct” based on misrepresentations in his curriculum vitae. Grant sued the University, Trustees, and several
University employees, filing twenty-six claims arising out of
his termination. The district court partially granted the defendants’ motion for judgment on the pleadings and later
granted the defendants’ motion for summary judgment on the
On appeal, Grant contends that the district court inappropriately granted summary judgment on five claims. Grant,
who is African American, maintains that the University: (1)
discriminated against him on the basis of race; (2) retaliated
against him for his complaints against two University officials; (3) denied him due process of law; (4) defamed him in
the South Bend Tribune; and (5) breached a contract created by
the University’s handbook. In viewing the evidence in the
light most favorable to Grant, we find that Grant has failed to
produce admissible evidence demonstrating there exists any
disputed issue of fact as to these five claims. So we affirm the
district court’s judgment in the defendants’ favor.
Otis Grant was a professor at the University of Indiana
South Bend (“IUSB”) from 1999 until his dismissal in 2011.
During that time, he was granted tenure in the College of Arts
and Sciences and won several awards. But in 2008, several students complained to University administration that Grant inappropriately cancelled classes, used obscene language in
class, dismissed two students from his course without following proper procedure, and had permitted a non-employee to
grade student work and access academic records.
Executive Vice Chancellor of Academic Affairs, Alfred J.
Guillaume, Jr., assigned Dean Lynn R. Williams to investigate
the complaints. As a result of his investigation, Williams recommended that Grant be denied access to the College of Arts
and Sciences travel funds for the fiscal year and a salary increase for 2009-10. Williams also accused Grant of being evasive and refusing to provide information or providing false
information during the investigation. Guillaume accepted
and implemented the recommended sanctions. Grant then
filed an affirmative action complaint with the University’s Director of Affirmative Action, alleging Williams took an adverse employment action against Grant because of his race.
Meanwhile, the students had also reported their concerns
to the local newspaper, the South Bend Tribune. The newspaper
submitted several open records requests to the University, including two relating to Grant’s education and training. Guillaume began collecting records for a response, as the University is subject to Indiana’s Access to Public Records Act. In doing so, Guillaume noticed discrepancies in Grant’s employment records and attempted to obtain clarification. But Guillaume’s exchange with both Grant and the institutions listed
on Grant’s application materials only raised more concerns.
For example, over the course of his employment at IUSB,
Grant had changed the name of the judge for whom he
clerked from “Richard M. Wright” to “Richard M. Rittenband” and changed the name of the institution from which he
received a master’s degree from the “Gestalt Institute of Psychology” to the “Gestalt Institute in Liverpool.”
A. Faculty Misconduct Review Committee
Guillaume determined that Grant “misled the university
when he applied for a faculty position by falsifying his academic credentials in numerous and significant ways” and repeated such misrepresentations throughout his employment.
Guillaume presented his findings to the Faculty Misconduct
Review Committee (“FMRC”) on September 8, 2009, and recommended that Grant be dismissed for serious personal misconduct. Grant was notified and he responded on October 6,
On November 4, 2009, the FMRC issued a written recommendation in which it declined to proceed with a formal hearing, though it noted that the issues were “troubling.” The
FMRC reasoned that verification of Grant’s credentials had
been the responsibility of the Search and Screen Committee at
the time Grant was hired, and it thought that a hearing was
not likely to establish “chronic or substantial incompetence or
misconduct” as the charges did not relate to Grant’s scholarship or teaching. The FMRC also concluded that, even if the
allegations against Grant were true, they could not be the basis for dismissal and removal of Grant’s tenure. Six months
later, on May 10, 2010, Guillaume submitted a recommendation for Grant’s dismissal to IUSB Chancellor Uma Mae Reck
based on his strong belief that the FMRC had reached the
wrong decision. After that, Guillaume had no further involvement in any employment decisions concerning Grant.
B. Investigation and Termination
Reck met with Grant to discuss Guillaume’s recommendation for dismissal on September 1, 2010. Grant denied all
charges and alleged Guillaume was retaliating against him for
filing the affirmative action complaint against Williams. Because of Grant’s allegations of discrimination and the contradictory assertions by Guillaume and Grant regarding Grant’s
credentials, the University, through its counsel, hired an independent investigation firm, Klink & Company (“Klink”). Reck
informed Grant in writing that Klink had been retained to
conduct its own review of Grant’s curriculum vitae (“CV”)
and application materials. Meanwhile, Grant provided a 42page response to Reck regarding Guillaume’s recommendation for dismissal. However, he did not include any new documentation to substantiate his credentials.
Reck received Klink’s final report on February 22, 2011.
Klink noted that Grant had impeded its investigation by failing to provide consent to verify his employment and educational credentials. Klink concluded that many of Grant’s credentials were “vague,” “misleading,” or “otherwise incorrect.” For example, in his 1998 CV, Grant represented that he
was a lecturer or instructor at California State College, Howard University, the Armed Forces Institute, and Boston State
College. Grant eventually admitted he did not actually work
for these institutions, but rather taught workshops lasting
only two or three days on their campuses. But Klink was unable to find any evidence to substantiate Grant’s claims that
he was a lecturer, instructor, or workshop leader at any of
these institutions. Klink detailed several other discrepancies,
including Grant’s representation at the time of his application
that he was enrolled and pursuing a PhD at Columbia University, representations on his 1998 CV regarding his master’s
degree, claimed fellowships and law clerk experience, and
discrepancies relating to a letter of recommendation. 1
On March 8, Reck provided the Klink report to Grant,
who, on April 25, responded with a 43-page response denying
its findings. Grant again failed to provide documentation to
support his representations or to contradict the report’s findings. Thereafter, Reck made several attempts to meet with
1 We do not detail each discrepancy found by Klink, as all the details are
not necessary to complete our analysis.
Grant. On September 13, 2011, after more than twenty failed
attempts to contact Grant, Reck informed Grant that she
found he had “engaged in serious personal and professional
misconduct[,]” which “present[ed] a severe threat to the academic integrity and reputation of the University.” R. 110–10
at 2. 2 Under the University’s Academic Handbook, personal
misconduct includes dishonest conduct “not limited to, false
accusation of misconduct, forgery, alteration or misuse of any
university document, record or identification; and giving to a
university official information known to be false.” R. 119–6 at
36. Reck notified Grant that he was dismissed from the faculty
effective December 31, 2011. The decision to terminate Grant
was never submitted to the University Senate Promotion, Tenure and Reappointment Committee.
Reck informed Grant that, pursuant to the University’s Academic Handbook, he could request a hearing. The next day,
Grant suggested that he planned to appeal Reck’s decision.
On September 26, 2011, Reck reminded Grant that he should
submit his appeal as soon as possible to allow for a hearing
before his date of dismissal. On December 19, 2011, just days
before his December 31 dismissal date, Grant submitted a 283page grievance to the Faculty Board of Review (“Faculty
Board”). But, again, Grant provided no documentation to
substantiate his credentials or dispute Klink’s findings.
Beginning in January 2012, the Faculty Board gathered information from Reck and Grant and attempted to schedule a
hearing. Eight months later, on August 1, 2012, Grant confirmed with the Faculty Board Chair that he still wished to
2 All record cites are to the record in the United States District Court for
the Southern District of Indiana, Case No. 1:13-cv-00826-TWP-DML.
have a hearing in his case. After weeks of unsuccessful attempts to find a mutually agreeable time for the hearing,
Grant terminated the Faculty Board process on August 28,
2012 by indicating that he no longer wished to have a hearing.
C. District Court Proceedings
Grant filed suit against Guillaume, Reck, President Michael A. McRobbie, Indiana University, Indiana University
South Bend, and the Trustees of Indiana University (collectively “the defendants”) in connection with his termination.
In his First Amended Complaint, Grant alleged twenty-six
causes of action. The district court partially granted the defendants’ motion for judgment on the pleadings. The defendants then filed a motion for summary judgment to dispose of
the remaining claims, which the district court granted. It
found that Grant, who “did not include a substantive fact section in his response brief and rarely cited specific facts in support of his arguments[,]” had failed to submit any evidence to
support his claims and had shown no material dispute of fact
that required trial. Grant v. Trustees of Indiana Univ., No. 113CV-00826-TWP-DML, 2016 WL 12222344, at *1 (S.D. Ind. Mar.
On appeal, Grant argues that the district court erred in
granting summary judgment to the defendants on five of his
claims: (1) discrimination on the basis of race; (2) retaliation
for filing affirmative action complaints; (3) denial of due process of law; (4) defamation in the South Bend Tribune; and (5)
breach of a contract created by the University handbook.
The question on summary judgment is whether the defendants have shown that there is no genuine dispute as to
any material fact and are entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). We review the district court’s grant
of summary judgment de novo, resolving all factual disputes
and drawing all reasonable inferences in favor of Grant, the
non-moving party. Poullard v. McDonald, 829 F.3d 844, 852 (7th
Cir. 2016). But Grant is only entitled to the benefit of inferences supported by admissible evidence, not those “supported by only speculation or conjecture.” Nichols v. Michigan
City Plant Planning Dep’t, 755 F.3d 594, 599 (7th Cir. 2014) (citation and quotation marks omitted).
As the “‘put up or shut up’ moment in a lawsuit,” summary judgment requires a non-moving party to respond to
the moving party’s properly-supported motion by identifying
specific, admissible evidence showing that there is a genuine
dispute of material fact for trial. Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003)).
Such a dispute exists when there is sufficient evidence favoring the non-moving party to permit a trier of fact to make a
finding in the non-moving party’s favor as to any issue for
which it bears the burden of proof. Packer v. Tr. of Indiana Univ.
Sch. of Med., 800 F.3d 843, 847 (7th Cir. 2015). Grant has not
met this burden. To begin, his Amended Response in Opposition to the Defendants’ Motion for Summary Judgment
(Grant’s “response”) included a mere three-sentence “Statement of Material Facts in Dispute,” which stated:
Plaintiff is an African American who was an award winning tenured faculty member at Indiana University South
Bend for more than a decade. After Plaintiff complained
of discrimination and retaliation, Defendant Reck fired
Plaintiff, alleging that he misled Indiana University with
his alleged 1998 resume (curriculum vitae), despite the fact
that Plaintiff was cleared by the Faculty Misconduct Committee and not afforded a hearing prior to termination.
Plaintiff disputes many of the material facts designated by
R. 118 at 1.
In the rare instances where Grant’s response to the defendants’ motion alleged facts to support his arguments, he often
failed to cite to admissible evidence supporting such assertions. Elsewhere, Grant simply supported his factual assertions by a general citation to an attached appendix, contrary
to Southern District of Indiana Local Rule 56-1 requiring particularity–a rule we have long upheld. Packer, 800 F.3d at 848.
And Grant, who is pro se on appeal, was represented by counsel in the district court so we are not obligated to liberally construe his filings. C.f. Nichols, 755 F.3d at 600. On appeal, Grant
attempts to identify and argue facts supporting his case. But
“[w]e will not consider factual arguments that were not raised
below nor … evidence that was not properly cited to the court
below.” Packer, 800 F.3d at 849. For the reasons below, we
agree with the district court and affirm summary judgment in
favor of the defendants on all claims Grant pursues on appeal.
A. No Evidence of Discrimination or Retaliation
We consider Grant’s discrimination and retaliation claims
together, as Grant combines his arguments when asserting
these claims. Grant relied on the so-called indirect method of
proof to establish his discrimination and retaliation claims.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
But after this case was briefed on appeal, we discarded the
long-standing practice of distinguishing between “direct”
and “indirect” evidence in analyzing discrimination claims.
Ortiz v. Werner Enter. Inc., 834 F.3d 760 (7th Cir. 2016). To be
clear, the McDonnell Douglas indirect method of proof remains
“a means of organizing, presenting, and assessing circumstantial evidence in frequently recurring factual patterns
found in discrimination cases.” David v. Bd. of Tr. of Cmty. Coll.
Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017). However, it is
not the only method of establishing a triable issue of intentional discrimination. Neither is it “the only way to assess circumstantial evidence of discrimination.” Id. Instead, the appropriate question on summary judgment is simply: could a
reasonable jury find based on all available evidence that a discriminatory or retaliatory motive caused Grant’s termination?
Williams v. Office of the Chief Judge of Cook Cty., 839 F.3d 617,
626 (7th Cir. 2016).
On appeal, Grant contends that several pieces of evidence
point to an illicit motive. However, since these arguments and
citations were not included in his response to the defendants’
motion, we will not consider it on appeal. As we have said
before, “[i]t would be unfair to both the [defendants] and the
district judge” for us to find there exists a material dispute of
fact precluding summary judgment based on evidence offered for the first time on appeal, “when the district court was
never alerted to those evidentiary grounds and the [defendants] did not have the opportunity to address them below.”
Packer, 800 F.3d at 849. Instead, Grant’s response to the defendants’ motion can be boiled down to two arguments: 3 (1)
3 Grant also argues, pursuant to the traditional McDonnell Douglass indi-
rect method of proof, that the district court erred in finding that he failed
to offer a comparator. However, he only referenced a comparator in his
Guillaume had a discriminatory motive that he imputed upon
Reck to influence her decision to terminate Grant (i.e., the
“cat’s paw” theory of liability); and (2) Reck’s proffered reason for terminating Grant–that Grant had committed serious
misconduct by making ongoing misrepresentations of his credentials–was merely pretextual.
Under the cat’s paw theory of liability, when a biased subordinate who lacks decision-making authority uses a “formal
decision maker as a dupe in a deliberate scheme to trigger a
discriminatory employment action,” the biased subordinate’s
actions are evidence of discrimination. Nichols, 755 F.3d at 600
(citation and quotation marks omitted). This theory requires
Grant to show that Guillaume “actually harbored discriminatory animus against him[,]” which he has not done. Id. at 604.
In his response, Grant merely offered a conclusory statement,
with no citation to any record evidence. See R. 118 at 14 (“[I]t
is reasonable to assert that [Reck] had been manipulated by
Defendant Guillaume, her subordinate, who does have such
a [discriminatory] motive when he intended to bring about
adverse employment action against Plaintiff.”). Grant has also
failed to show that Guillaume’s “input was a proximate cause
of [Grant] getting fired.” Nichols, 755 F.3d at 604. First, Grant
never rebutted the defendants’ assertion that Guillaume did
not have any input or influence on Grant’s case after submitting it to Reck over a year before Grant’s termination. Next, as
we discuss below, Grant offered no evidence showing that
Reck did not rely solely on Klink’s findings in reaching her
First Amended Complaint and it is well-established that a non-moving
party cannot rest on its pleadings when responding to a motion for summary judgment. Harney, 526 F.3d at 1104. So, we do not consider this argument on appeal.
decision to terminate Grant. Thus, he cannot survive summary judgment on a cat’s paw theory of liability.
Next, Grant correctly states that “[i]f Plaintiff can raise a
genuine issue about Defendant Reck’s honesty … the case
may need to be tried.” R. 118 at 14. However, Grant offered
no evidence that Reck’s “stated nondiscriminatory reason
was a lie intended to mask unlawful discrimination.” Liu v.
Cook Cnty., 817 F.3d 307, 316 (7th Cir. 2016). “The question is
not whether the employer’s stated reason was inaccurate or
unfair, but whether the employer honestly believed the reason it has offered for the adverse action.” Id. (citation and quotation marks omitted). The evidence supports Reck’s assertion that she believed Grant’s continuing misrepresentations
of his credentials rose to the level of serious personal misconduct worthy of his termination. And the court “is not a super
personnel department that second-guesses employers’ business judgments.” Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 895
(7th Cir. 2016) (citation and quotation marks omitted). Even
so, Grant offered no evidence to show that Reck did not honestly believe she could terminate him for his misrepresentations. And the Board of Trustees clearly agreed with Reck
when it formalized Grant’s termination on these grounds. See
R. 119–14 at 17.
Grant has also provided nothing to demonstrate that any
disputed issue of fact exists regarding the accuracy of the
Klink findings, which formed the basis of Reck’s belief that
Grant misrepresented his credentials. Though Klink’s findings need not be true for Reck to have honestly relied upon
the report, Grant may have been able to show pretext if, for
example, he had demonstrated that Klink’s report was inaccurate or biased and that he had brought such inaccuracies or
biases to Reck’s attention. However, Grant offers no evidence
that Klink was used as a shield to cover-up Guillaume’s conduct in imputing his discriminatory intent upon Reck. Grant
cannot rely on wholly conclusory statements without a scintilla of evidence to overcome summary judgment. Because the
evidence does not permit a reasonable fact-finder to conclude
that Reck’s proffered reason for terminating Grant was pretextual, the district court properly granted summary judgment to the defendants on Grant’s discrimination and retaliation claims.
B. No Deprivation of Procedural Due Process
Grant next alleges he was deprived of due process pursuant to 42 U.S.C. § 1983. We conduct a two-fold analysis of procedural due process claims. Pugel v. Bd. of Trustees of Univ. of
Ill., 378 F.3d 659, 662 (7th Cir. 2004). We must first determine
whether Grant was deprived of a protected interest. If we find
that he was, we must then determine what process Grant was
due. Id. The record reflects that, as a tenured professor at
IUSB, Grant could only be terminated for good cause. It is
well-established that a public employee who can only be terminated for good cause has a constitutionally protected property interest in continued employment. See Carmody v. Bd. of
Tr. of Univ. of Illinois, 747 F.3d 470, 474 (7th Cir. 2014); Harbaugh v. Bd. of Educ. of City of Chicago, 716 F.3d 983, 986 (7th
Cir. 2013); Gilbert v. Homar, 520 U.S. 924, 928–29 (1997); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–39 (1985). Because Grant was fired, he was deprived of his protected interest in continued employment.
We must next determine what process Grant was due. He
maintains that the defendants denied him due process by terminating him without following the process outlined in the
University’s handbook. We have tirelessly reminded litigants
that our determination of whether the requirements of federal
due process were satisfied is different from a determination
of whether there was perfect compliance with an institution’s
rules. The process outlined in the IUSB handbook does not
constitute the process required by the federal Constitution.
See Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993). Instead,
due process “is flexible and requires only such procedural
protections as the particular situation demands.” Riano v.
McDonald, 833 F.3d 830, 834 (7th Cir. 2016) (citation and quotation marks omitted). The cornerstone of due process is notice and the opportunity to be heard “at a meaningful time
and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (citation and quotation marks omitted). Generally, the adequacy of the post-termination process informs
our analysis of the sufficiency of the pre-termination process.
See Carmody, 747 F.3d at 474. However, Grant’s “decision to
bow out of the post-termination hearing–a decision he made
freely–forecloses his due process claim to the extent it is premised on that hearing.” Id. at 479. 4 So, we need only analyze the
sufficiency of the University’s pre-termination process. See
Loudermill, 470 U.S. at 545.
We must balance three factors to determine whether the
University’s pre-termination process failed to meet the Constitutional minimum: (1) the private interest affected by the
4 Grant contends that he did not waive his right to argue the insufficiency of his post-termination hearing based on Baird v. Board of Education
for Warrant Cmty. Unit Sch. Dist. No. 205, 389 F.3d 685 (7th Cir. 2004). We
are not persuaded by his argument, since, unlike the plaintiff in Baird,
Grant chose not to accept or appear at the available proceedings. See id. at
official action; (2) “the risk of erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards”; and
(3) the University’s interest, “including the function involved
and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.” Mann v.
Vogel, 707 F.3d 872, 879 (7th Cir. 2013) (brackets omitted) (citation and quotation marks omitted). The first factor indisputably favors Grant as he has a substantial interest in retaining
his job. See Homar, 520 U.S. at 932 (recognizing the “severity
of depriving someone of the means of his livelihood”).
In considering the second factor, the evidence shows
Grant was afforded notice and a detailed explanation of the
charges and the evidence against him at every step of the twoyear process (from 2009 until his termination on December 31,
2011). Grant was also provided with ample and meaningful
opportunity to be heard and to refute the charges against him,
as demonstrated by the numerous written responses he submitted, ranging from 42 to 300 pages in length, and meetings
with University officials. There is no evidence that these opportunities to be heard were not meaningful. Furthermore,
the evidence shows that the University, not Reck, hired Klink,
an independent investigation firm with no bias or stake in the
outcome of its investigation, and Grant was provided with the
opportunity to be heard by Klink, but refused to take advantage of this opportunity. There is also no value to additional procedural safeguards here. While we have said that
“the right to additional procedural protections does not depend on a demonstration of ‘certain success,’” the deprivation
alleged must involve issues that “plausibly would have prevented an erroneous deprivation.” Clancy v. Office of Foreign
Assets Control of the U.S. Dep’t of Treasury, 559 F.3d 595, 601
(7th Cir. 2009). Even after years of discovery in this suit, Grant
has not offered any evidence that the charges against him are
The final factor also weighs in favor of the defendants. Additional procedures would be an unnecessary burden on the
defendants, who have a legitimate interest in protecting the
integrity of the University. It is reasonable to believe that the
University’s reputation, as a state institution subject to accrediting agencies, government bodies, and public criticism, rests
partially upon its retention of faculty with verified credentials. And, as our analysis of the second factor showed, additional procedures could not plausibly have prevented an erroneous deprivation. Here, the balance clearly shows that the
pre-termination process Grant received complies with the requirements of due process, and the district court properly disposed of this claim on summary judgment.
C. No Specific Evidence to Support Defamation Claim
A cornerstone of a defamation claim under Indiana law is
the falsity of any alleged defamatory statement. Trail v. Boys
& Girls Club of Nw. Indiana, 845 N.E.2d 130, 136 (Ind. 2006).
This is where Grant’s claim fails. In his response to the defendants’ motion, Grant makes a broad, unsupported assertion that statements in the South Bend Tribune articles are false.
But rather than point to any specific statement or cite any specific evidence, Grant merely cites to his 12-page attachment of
various newspaper articles and to Reck’s entire 237-page deposition, in violation of Southern District of Indiana Local Rule
56-1. And we refuse to “scour the record in search of evidence
to defeat a motion for summary judgment[.]” Harney, 526 F.3d
at 1104. Therefore, the district court properly granted the defendants’ motion for summary judgment on Grant’s defamation claim.
D. No Evidence of a Contract
Finally, Grant contends that when he was granted tenure,
the University entered into a contract with him, governed by
the University’s handbook. He alleges that the University
breached this contract by terminating him without following
the IUSB handbook’s outlined procedure. However, Indiana
University’s handbook cannot form the basis of any contract
alone, as it expressly disclaims the creation of any legal rights
and applies this disclaimer to all campus-specific handbooks.
See Packer, 800 F.3d at 853. Grant offered no evidence to overcome the handbook’s disclaimer, so his contractual theory is
wholly unsupported. The district court properly disposed of
this claim on summary judgment.
We AFFIRM the district court’s grant of summary judgment
in favor of the defendants on all claims.
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