Matland v. Loyola University Chicago
Filing
52
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 10/28/2013. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD MATLAND,
Plaintiff,
v.
LOYOLA UNIV. OF CHICAGO,
Defendant.
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No. 12 C 5165
MEMORANDUM OPINION AND ORDER
In this suit under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12111 et seq., Richard Matland (“Matland”)
claims that Loyola University of Chicago (“Loyola”) denied him a
reasonable accommodation and terminated his appointment as the
Helen Houlahan Rigali Professor of Political Science (“Rigali
Chair”) because of his disability.
Loyola counters that Matland
(1) did not make a timely request for a reasonable accommodation
and (2) was not reappointed as the Rigali Chair because of his
thin record of publications.
The parties have filed cross motions for summary judgment.
I deny both motions for the reasons stated below.
I.
In 2005, Loyola formed a search committee to fill the newly
created Rigali Chair in political science.
Matland was a tenured
professor at the University of Houston when he applied for a five
1
year renewable term as the Rigali Chair at Loyola.
After
attempting to negotiate a guarantee of two terms, Matland signed
an offer letter that contained the following language about the
standards for reappointment:
Criteria to determine possible reappointment as the
Rigali Professor may include a sustained record of
excellence
in
research
and
teaching,
continued
recognition for a record of excellence in research and
scholarship internal and external to the University,
and an ongoing contribution to your field of learning
and to the University.
Def.’s Ex. A-5.
Matland began his appointment as the Rigali Chair during the
2006-2007 academic year.
After experiencing severe respiratory
problems, Matland was diagnosed with an interstitial lung disease
in May 2007 and advised that he may need a lung transplant.
Pl.’s Statement of Facts (“PSOF”) at ¶ 15.
He started a four to
six month course of chemotherapy during the fall semester in
2007.
Id. at ¶ 17.
Matland carried an oxygen tank around campus
during his tenure as the Rigali Chair and had a noticeable cough.
Id. at ¶¶ 19, 38.
Matland disclosed his lung condition to Claudio Katz, Chair
of the Political Science Department from 2003 to 2008, on two
occasions.
In the fall of 2007, Matland told Katz he had been
diagnosed with an autoimmune disease for which he was taking
steroids and being considered for a lung transplant.
Statement of Facts (“DSOF”) at ¶ 60.
2
Def.’s
Katz asked Matland whether
he needed to take a medical leave of absence.
Id.
Matland told
Katz he could continue working given that he only needed to be in
the classroom for three hours each week.
Id.
The next time
Matland mentioned his health to Katz was during his annual
assessment in January 2008.
In his written self-assessment,
Matland stated that his lung condition prevented him meeting his
publishing goals in 2007.
Id.
Matland’s most significant accomplishment as the Rigali
Chair was securing a $375,000 grant from the National Science
Foundation (“NSF”) in 2008 to research “Women Candidates in
Regional Russia.”
Id. at ¶ 19.
The parties dispute how many
publications Matland prepared during his tenure as the Rigali
Chair.
Compare Def.’s SOF at ¶¶ 22-25 with Pl.’s Resp. to Def.’s
SOF at ¶¶ 38-39.
However, it is undisputed that Loyola rated
Matland as meeting or exceeding its expectations with regard to
“scholarship” in its annual assessments for each year from 2006
to 2010.
See Def.’s Exs. A-14 to A-18.
In May 2010, Provost John Pelissero (“Provost Pelissero”)
sent Matland a letter explaining the five year review process for
endowed chairs.
Pelissero’s letter referred to a “Protocol
Document” that was in effect when Matland assumed the Rigali
Chair in July 2006:
[E]very five years the university shall conduct a
summative evaluation of the person’s accumulated
contributions and achievements. The process used shall
3
be parallel to the process for promotion to full
professor...[A]
faculty
member
who
has
made
consistently excellent contributions in scholarship,
teaching, and service may be recommended to enjoy
another five year term as the holder of the endowed
chair or endowed professorship.
Def.’s Ex. A-7.
In August 2010, Francis Fennell, Dean of the
College of Arts and Sciences (“Dean Fennell”), sent Matland a
follow up letter indicating that Loyola would not consider any
activities or accomplishments preceding his installation as the
Rigali Chair during the review process.1
Def.’s Ex. A-10.
In August 2010, Matland submitted a report of his activities
and accomplishments as the Rigali Chair.
The second full
paragraph of Matland’s report described his illness:
While I have actively worked at reaching these goals
and establishing myself at Loyola, I also have had to
deal with a serious and debilitating auto-immune
disease that has attacked my lungs...For long periods
of time I have gone through chemotherapy, extremely
heavy doses of steroids resulting in only two [to]
three hours of sleep a night, and switching from drug
to drug to drug trying to find something that worked
effectively without debilitating side effects. I have
been in the hospital every year since coming to
Loyola...My condition fluctuates, but presently is
stable.
This requires, however, a high dosage of
immuno-suppressants that have a variety of negative
side effects...Nevertheless, I have worked hard at
fulfilling my obligations and I believe I have [done]
so in a satisfactory manner.
1
Matland continues to argue that Loyola assured him during the
recruitment process that his entire record would be considered
during the Rigali Chair review, but I have already dismissed his
promissory estoppel and fraudulent misrepresentation claims. See
Matland v. Loyola Univ. of Chicago, No. 12 C 5165, 2012 WL
5949067 (N.D. Ill. Nov. 27, 2012).
4
Def.’s Ex. A-11.
Loyola distributed Matland’s renewal application, including
the narrative quoted above, to four external reviewers before
starting its internal review process.
PSOF at ¶ 27.
All four
external reviewers recommended renewing Matland’s appointment as
the Rigali Chair.
Id. at ¶ 28.
Reviewer B described Matland’s
publication record from 2006 to 2010 as “thin,” but noted that he
has been “grievously ill for four years.”
Def.’s Ex. I-1.
She
concluded, “I don’t think you need an outside reviewer to tell
you that this has posed a major impediment to [Matland]
continuing to publish at the same rate he did before.”
Id.
Reviewer D also commented that Matland had “faced major health
problems of a truly frightening sort that have undoubtedly cut
into his research activity.”
Id.
The first layer of Loyola’s internal review process was a
committee consisting of all full professors in the Political
Science Department.
PSOF. at ¶ 24.
After reading Matland’s
submission and the external reviews, a committee member inquired
whether it would be permissible to postpone the Rigali Chair
review process for a year or two because of Matland’s illness.
Pl.’s Ex. 6.
Vincent Mahler (“Mahler”), the new Chair of the
Political Science Department, asked Dean Fennell whether
Matland’s health should factor into the committee’s decision in
any way.
Id.
Fennell questioned the “appropriateness” of
5
Matland’s narrative about his illness and agreed with Mahler that
the departmental committee should make its decision based
strictly on academic merit.
Id.
On November 8, 2010, the
Political Science Department committee voted six to three against
reappointing Matland to the Rigali Chair based on his “very poor
publication record” and skepticism about whether his NSF-funded
research would result in publications.
DSOF at ¶ 42.
Department Chair Mahler performed the next layer of internal
review and completed his report on November 15, 2010.
After
acknowledging Matland’s “strong record of grantsmanship,” Mahler
concurred with the departmental committee’s recommendation to
terminate Matland’s appointment as the Rigali Chair because of
his thin record of publications from 2006 to 2010.
Id. at ¶ 43.
A majority of the Rank, Tenure, and Leave Committee in the
College of Arts and Sciences reached the same conclusion by vote
of six to one and submitted its recommendation to Dean Fennell on
November 22, 2010.2
Id. at ¶ 44.
Dean Fennell completed his own review on November 30, 2010
and concurred that Matland should not be reappointed as the
Rigali Chair.
Pl.’s Ex. 16.
Unlike previous internal reviewers,
2
The college-level committee noted the “vague[ness]” of the
Protocol Document and wondered whether five years was not enough
time to evaluate work that is high-risk or long-term in nature.
Def.’s Ex. G.
6
who did not factor Matland’s illness into their recommendations,
Dean Fennell’s report included the following commentary:
[I] need to address the most salient argument made for
his retention [as the Rigali Chair], the one made by
his external reviewers and the minority of his
department committee: namely, that Dr. Matland’s
decline in productivity is owing directly to his
ongoing illness.
He should not be “punished,” as it
were, for a very unfortunate circumstance over which he
has no control. I asked the department not to evaluate
the effect of his illness, since that lies outside its
area of competence.
But illness is clearly a major
factor, and Dr. Matland’s raising of it in the very
first paragraph of his memo requires that I acknowledge
the issue in explaining my recommendation.
Here’s how [I] view it, and I will argue by analogy.
Suppose a star major league baseball player signs a
multi-million dollar five year contract.
Further
suppose that two years into the contract the player
sustains, through no fault of his own, a career-ending
injury. Certainly the team is obliged to still pay him
until the end of his contract--presumably his agent put
in language to that effect.
But when the five years
are up, is the team obliged to offer him a new five
year contract when he can no longer play the game at
the major league level? Clearly not. The same would
be true here, in my view: nowhere does Dr. Matland
claim his illness is going to ameliorate, that renewed
high productivity can be expected. So I do not see an
injustice in passing the responsibilities of the Rigali
professorship on to someone else.
Id.
Dean Fennell did not ask Matland about his prognosis during
the Rigali Chair review process because he thought doing so would
have been inappropriate.
PSOF at ¶ 41.
The University Rank and Tenure (“URT”) Committee performed
the final layer of internal review before Provost Pelissero
decided whether to renew Matland’s appointment as the Rigali
7
Chair.
On January 12, 2011, the URT committee concluded that
Matland’s “record of scholarship does not meet the expectations
of someone in such a prestigious position.”
Def.’s Ex. H-1.
After reviewing Matland’s submission, the external
reviewer’s comments, and all internal recommendations, Provost
Pelissero informed Matland on January 26, 2011 that he would not
be reappointed as the Rigali Chair in political science,
“primarily due to a low record of published scholarship.”
Def.’s
Ex. A-22.
On March 29, 2011, Matland appealed Provost Pelissero’s
decision, arguing, inter alia, that the decision not to renew his
appointment as the Rigali Chair constituted discrimination based
on his disability: “Despite my clear signaling that my health had
been a problem, at no point did [Loyola’s internal reviewers]
request any information and at no point, as far as I can tell,
was there any consideration that my health may have delayed some
of my productivity.”
Def.’s Ex. A-23 at 5.
“Surely if any
concession is made for the fact that moving and illness has
slowed my production, and any reasonable attempt is made to make
a prediction of pay off in the future, the record is more than
enough to deserve reappointment.”
Id. at 10.
The Faculty Appeals Committee (“FAC”) held a hearing on
Matland’s appeal in September 2011.
After gathering evidence and
hearing testimony, the FAC “found no evidence that Dr. Matland
8
formally requested any accommodations due to his illness with
regard to his research productivity.”
Def.’s Ex. A-24 at 2.
The
FAC noted that Dean Fennell, “in consultation with the Provost,”
was the only internal reviewer who considered Matland’s illness
in making his recommendation.
Id. at 2-3.
Ultimately, because
“Dr. Matland’s illness was addressed inconsistently across the
review process,” the FAC recommended that Loyola should vacate
Provost Pelissero’s decision and assess “how to consider Dr.
Matland’s illness in light of the [ADA] and similar laws.”
Id.
at 1.
Loyola’s President, Father Michael Garanzini (“Father
Garanzini”), reviewed Matland’s appeal and the FAC’s
recommendation.
DSOF at ¶ 55.
After consulting with counsel,
Father Garanzini upheld Provost Pelissero’s decision not to renew
Matland’s appointment as the Rigali Chair based on his view that
the ADA did not require Loyola to grant Matland’s “retroactive
request for an accommodation that would now excuse [him] from
fulfilling an essential function of [his] appointment.”
Def.’s
Ex. F at 4.
Matland’s tenure as the Rigali Chair expired in June 2011.
DSOF at ¶ 56.
He remains a tenured professor of political
science at Loyola.
Id.
9
II.
The parties have filed cross motions for summary judgment on
Matland’s claims that Loyola (1) denied him a reasonable
accommodation and (2) terminated his appointment as the Rigali
Chair because of his disability.
Summary judgment is appropriate where the movant “show[s]
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
The ADA identifies which facts are “material” because
they “might affect the outcome of the suit.”
Lobby, Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty
A material fact is
genuinely in dispute “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Id.
In
ruling on cross motions, I must “construe all inferences in favor
of the party against whom [each] motion under consideration is
made.”
Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th
Cir. 1998).
A.
1.
Matland’s first claim alleges a violation of the ADA’s
reasonable accommodation mandate.
12112(b)(5)(A).
See 42 U.S.C. §
An employee’s initial duty to make his
limitations “known” to his employer “requires at most that [he]
indicate... that [he] has a disability and desires an
10
accommodation.”
(7th Cir. 2005).
EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 803
The employee need not use the word
“accommodation” or any other magic words when making a request.
See Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281,
1285 (7th Cir. 1996).3
Once a request for accommodation is made,
“the employer and the employee must work together through an
‘interactive process’ to determine the extent of the disability
and what accommodations are appropriate and available.”
Sears,
417 F.3d at 804.
Here, Loyola seeks summary judgment on Matland’s failure to
accommodate claim on two grounds: (1) Matland failed to request
an accommodation or otherwise trigger Loyola’s duty to engage in
the interactive process before Provost Pelissero decided not to
renew his appointment as the Rigali Chair and (2) to the extent
Matland requested a reasonable accommodation when appealing
Provost Pelissero’s decision, the ADA does not require employers
to grant “do-overs” or second chances.
In short, Loyola argues
that Matland’s requests were either too ambiguous or “too little,
too late.”
3
Loyola relies on Jovanovic v. In-Sink-Erator Div. of Emerson
Elec. Co., 201 F.3d 894 (7th Cir. 2000), for the proposition that
an employee must “assert not only a disability, but also any
limitation[s] resulting therefrom.” Id. at 898 (quoting Taylor
v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir. 1996)).
The Jovanovic court noted that the Seventh Circuit “has never
adopted the triggering requirement in Taylor” and did not rest
its decision on the employee’s failure to request an
accommodation. Id. at 898-99.
11
As a preliminary matter, Matland’s disability was or should
have been obvious to Loyola given that he carried an oxygen tank
around campus.
See Hedberg v. Ind. Bell Tele. Co, Inc., 47 F.3d
928, 934 (7th Cir. 1995) (“[S]ome symptoms are so obviously
manifestations of an underlying disability that it would be
reasonable to infer that an employer actually knew of the
disability.”).
Matland also explained to the chair of his
department in January 2008 that his illness had slowed his
progress on preparing publications.
Thus, the work-related
limitations resulting from Matland’s disability were at least
partially known to Loyola well before Matland applied for renewal
of the Rigali Chair in August 2010.
A reasonable jury could find that Matland’s renewal
application included a request for accommodation sufficient to
trigger Loyola’s duty to engage in the interactive process.
In
the second full paragraph of his application, Matland described
his illness as “debilitating” and his treatment regimen as a
“hassle” that required “a tremendous amount of both psychic
energy and time.”
Def.’s Ex. A-11.
Upon reading this narrative,
two external reviewers noted the connection between Matland’s
illness and his diminished scholarly output.
They recommended,
in effect, that Loyola should renew Matland’s appointment as the
Rigali Chair as a form of reasonable accommodation.
A member of
the Political Science Department committee also inquired whether
12
it would be permissible to postpone the Rigali Chair review for a
year or two as a form of reasonable accommodation.
In light of
these facts, a jury could easily find that Matland requested a
reasonable accommodation, and was regarded as having done so
until Dean Fennell instructed Loyola’s internal reviewers to base
their recommendation strictly on academic merit.
Loyola argues that Matland’s narrative cannot be construed
as a request for accommodation because Matland asserted that he
had “fulfill[ed] [his] obligations...in a satisfactory manner.”
Def.’s Ex. A-11.
This argument has no merit.
Matland’s
application does not establish that he wanted Loyola to evaluate
him without considering reasonable accommodations, even if that
meant losing the Rigali Chair.
To the extent Matland’s
assessment of his own performance created ambiguity about whether
he was seeking an accommodation, Loyola had a duty to inquire.
“Where notice is ambiguous as to the precise nature of the
disability or desired accommodation, but it is sufficient to
notify the employer that the employee may have a disability that
requires accommodation, the employer must ask for clarification.”
Sears, 417 F.3d at 804; see also Gile v. United Airlines, Inc.,
213 F.3d 365, 373 (7th Cir. 2000) (employer’s duty to engage in
interactive process includes an “affirmative obligation to seek
[employee] out and work with [him] to craft a reasonable
13
accommodation, if possible”).4
Loyola’s unilateral decision to
interpret Matland’s narrative about his illness as extraneous
information--rather than a request for accommodation--is not
entitled to deference under the ADA.
In sum, a reasonable jury could find that Matland’s
application for reappointment as the Rigali Chair included a
timely request for a reasonable accommodation.
Accordingly, I
need not decide whether Matland’s appeal was “too little, too
late” in the sense that he was requesting a “do-over” or second
chance.
See Siefken v. Village of Arlington Heights, 65 F.3d
664, 666-67 (7th Cir. 1995) (holding that terminated employee’s
request for a “second chance” to control his diabetes did not
fall within ADA’s definition of “reasonable accommodation”).
Loyola’s motion for summary judgment on Matland’s failure to
accommodate claim is denied.
2.
Matland’s second ADA claim alleges that Loyola terminated
his appointment as the Rigali Chair because of his disability.5
4
Loyola has not cited any cases supporting its argument that
engaging in the interactive process when an employee’s request
for accommodation is ambiguous may expose the employer to
liability for “regarding” the employee as disabled. See 42
U.S.C. § 12102(3).
5
Loyola’s argument that its decision to terminate Matland’s
appointment as the Rigali Chair is an academic judgment entitled
to deference misses the point. Matland’s claim is that Loyola’s
decision was not a purely academic judgment as evidenced by Dean
Fennell’s memo comparing him to an athlete who has suffered a
career ending injury.
14
At the summary judgment stage, Matland must present evidence that
would permit a reasonable jury to find that his disability was a
“but for” cause of his termination.
Serwatka v. Rockwell
Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010)).
Loyola contends that Matland cannot survive summary judgment
under the “direct” or “indirect” method of proving intentional
discrimination.
“[D]irect proof of discrimination is not limited
to near-admissions by the employer that its decisions were based
on a proscribed criterion (e.g., ‘You're too [disabled] to work
here.’), but also includes circumstantial evidence which suggests
discrimination albeit through a longer chain of inferences.”
Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir.
2006).
“The focus of the direct method of proof...is not whether
the evidence offered is ‘direct’ or ‘circumstantial’ but rather
whether the evidence points directly to a discriminatory reason
for the employer's action.”
Atanus v. Perry, 520 F.3d 662, 671
(7th Cir. 2008) (internal quotation omitted).
In contrast, under
the “indirect method,” an employee “can raise the inference of
discrimination by identifying a similarly situated employee
outside the protected class who was treated more favorably by the
employer.”
Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 588
(7th Cir. 2011) (citing McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)).
15
Dean Fennell’s memo comparing Matland to a baseball player
who has suffered a career ending injury contains direct evidence
that Matland’s disability was a “but for” cause of Loyola’s
decision to terminate his appointment as the Rigali Chair.6
In
response to Mahler’s inquiry about whether the Political Science
Department committee should consider Matland’s disability, Dean
Fennell posed the following questions:
If one thinks the last [five] years is not okay, but is
explainable by the illness, then one has to decide
about the future: [W]ill the illness lift, so that one
is optimistic the next [five] years will be better?
[O]r will it likely not lift, in which case where does
that leave us in terms of what we expect/need from that
chairholder?
Pl.’s Ex. 6.
After consulting with Provost Pelissero, Loyola’s
final decision-maker,7 Dean Fennell made the following assumption
about Matland’s prognosis: “[N]owhere does Dr. Matland claim his
illness is going to ameliorate [or] that renewed high
productivity can be expected.
So I do not see an injustice in
6
Loyola’s argument that Dean Fennell’s memo does not express his
personal views about Matland’s disability is contradicted by Dean
Fennell’s own words: “Here’s how [I] view it, and I will argue by
analogy.” Def.’s Ex. A-21 at 3.
7
Fennell’s consultation with Pelissero, the final decision-maker
in the Rigali Chair review process, makes it unnecessary for
Matland to rely on the “cat’s paw” theory of employer liability.
See Staub v. Proctor Hosp., 131 S.Ct. 1186, 1194 (2011) (“[I]f a
supervisor performs an act motivated by [discriminatory] animus
that is intended by the supervisor to cause an adverse employment
action, and if that act is a proximate cause of the ultimate
employment action, then the employer is liable.” (emphasis in
original)). In any event, Pelisssero’s independent review of
Matland’s application does not automatically preclude employer
liability under the cat’s paw theory. See id. at 1193.
16
passing the responsibilities of the Rigali professorship on to
someone else.”
Def.’s Ex. A-21 at 3.
If Loyola wanted more information Matland’s prognosis, it
could have engaged in the interactive process to “identify the
precise limitations resulting from [his] disability.”
§ 1630.2(o)(3).
29 C.F.R.
Instead, Dean Fennell assumed that Matland’s
illness would remain a drag on his scholarly output and based his
recommendation on this assumption.
A reasonable jury could find
that under Dean Fennell’s own reasoning, but for his assumption
about Matland’s prognosis, he would have recommended renewing his
appointment as the Rigali Chair.
Accordingly, Loyola’s motion
for summary judgment on Matland’s disparate treatment claim is
denied.
B.
I turn now to Matland’s cross motion for summary judgment on
his two ADA claims.
1.
Matland seeks summary judgment on his reasonable
accommodation claim based on Loyola’s failure to engage in the
interactive process.
basis.
Summary judgment may not be granted on this
“The interactive process the ADA foresees is not an end
in itself; rather it is a means for determining what reasonable
accommodations are available to allow a disabled individual to
perform the essential job functions of the position sought.”
17
Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir.
1997).
Accordingly, “it is not sufficient for [Matland] to show
that [Loyola] failed to engage in an interactive process or that
it caused the interactive process to break down.”
Rehling v.
City of Chicago, 207 F.3d 1009, 1016-17 (7th Cir. 2000).
The statutory framework for Matland’s reasonable
accommodation claim remains the same notwithstanding Loyola’s
failure to engage in the interactive process: “To establish a
claim for failure to accommodate, [Matland] must show that: (1)
[he] is a qualified individual with a disability; (2) the
employer was aware of [his] disability; and (3) the employer
failed to reasonably accommodate the disability.”
F.3d at 797.
Sears, 417
Matland is “qualified” under the ADA only if he
could “perform the essential functions” of the Rigali Chair with
or without a reasonable accommodation.
42 U.S.C. § 12111(8).
A
desired accommodation is unreasonable when it would require the
employer to eliminate or reallocate an essential job function.
See Peters v. City of Mauston, 311 F.3d 835, 846 (7th Cir. 2002).
Here, Loyola has raised a genuine issue of material fact
about the extent to which publishing was an “essential function”
of the Rigali Chair.
Loyola, citing its Protocol Document,
contends that Matland was required to produce a body of
scholarship from July 2006 to August 2010 that would have been
sufficient to earn tenure because the endowed chair renewal
18
process is “parallel” to tenure review.8
To the extent Matland
sought a “concession” in Loyola’s expectation for scholarly
output, Loyola argues that publishing at a tenure-worthy rate is
an “essential function” of holding an endowed chair.
Matland counters with evidence that Loyola granted one of
his colleagues, Endowed Chair E, a one year extension of the five
year review process in 2011 and later renewed his appointment
without a full, multi-layer review process.
The work experience
of other endowed chairs is relevant in determining the essential
functions of the Rigali Chair.
See Miller v. Ill. Dept. of
Transportation, 643 F.3d 190, 198 (7th Cir. 2011) (employer’s
judgment about which job functions are essential “is not
controlling” because courts may “also look to evidence of the
employer’s actual practices in the workplace” (citing 29 C.F.R. §
1630.2(n)(3)(vi)-(vii)).
In fact, Loyola comes close to
admitting that producing a tenure-worthy body of scholarship
between 2006 and 2010 was not an essential function of the Rigali
Chair: “If Matland had asked for more time at any point before he
was denied reappointment, it is possible, even likely, that
Loyola would have given him more time.”
8
Dkt. No. 46 at 14.
In rejecting Matland’s contention that the Dean of the Graduate
School should have participated in the Rigali Chair review if the
process is truly “parallel” to tenure review, Father Garanzini
commented that “the process for evaluation of an endowed chair is
to be ‘parallel’ to the process for promotion to full professor-there is no requirement that it be identical.” Def.’s Ex. F at 3
(emphasis added).
19
Loyola’s apparent willingness to postpone the Rigali Chair review
suggests that its expectations regarding scholarly output were,
in fact, flexible.
The bottom line is that a genuine dispute exists over the
essential functions of the Rigali Chair and, by extension,
whether Matland is a “qualified individual” with a disability
under the ADA.
Therefore, Matland’s motion for summary judgment
on his failure to accommodate claim is denied.
2.
Matland’s disparate treatment claim also turns on whether he
is a “qualified individual” who could perform the “essential
functions” of the Rigali Chair with or without a reasonable
accommodation.
See Hoppe v. Lewis Univ., 692 F.3d 833, 838-39
(7th Cir. 2012) (stating elements of ADA disparate treatment
claim).
Summary judgment for Matland is inappropriate given the
genuine dispute about the extent to which publishing at a tenureworthy rate between 2006 and 2010 was an essential function of
the Rigali Chair position.
III.
The parties’ cross motions for summary judgment are DENIED
for the reasons stated above.
20
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: October 28, 2013
21
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