Rao v. Gondi et al
Filing
298
MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 6/5/2017. Dr. Rao's Motion for partial Summary Judgment 225 is denied and the Defendants' Motion for Summary Judgment 219 is granted to counts I,II,VII, VIII, and X denied but denied as to count IX. Mailed notice(lk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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JASTI RAO,
Plaintiff,
v.
CHRISTOPHER GONDI et al.,
Defendants.
14 C 66
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Before his resignation in March of 2013, Plaintiff Dr. Jasti Rao was a high-profile cancer
researcher at the University of Illinois’s College of Medicine at Peoria, a tenured professor at the
University, and one of its highest paid employees. On March 21, 2013, that all changed when
Dr. Rao resigned his positions after being presented with evidence of misconduct by the
University’s outside counsel, including allegations that he demanded and accepted cash
payments from at least one subordinate to pay off alleged gambling debts and concealed the
extent of errors in papers published by his lab and then directed subordinates to delete documents
evidencing the scope of the errors. Following his resignation, Dr. Rao sued the University, along
with his former supervisors, Dr. Sara Rusch and Dr. Dimitri Azar. In his surviving claims, 1 Dr.
Rao alleges that he was discriminated against on the basis of his national origin in violation of
Title VII and the Illinois Civil Rights Act of 2003 (“ICRA”) (Counts I, II, and VII), retaliated
1
Dr. Rao’s Section 1983 claims against the University were dismissed on January 11, 2017. (See Dkt. 253.)
1
against for raising allegations of research improprieties against other professors (Count VII), and
denied due process and equal protection (Counts IX and X).
After a long and contentious discovery process, both parties filed summary judgment
motions. Defendants moved for summary judgment on all counts; while Dr. Rao moved for
summary judgment only on his Due Process Section 1983 claim against Dr. Rusch and Dr. Azar
(Count IX). For the reasons stated herein, Defendants’ Motion for Summary Judgment is
granted in part and denied in part, and Dr. Rao’s Motion for Summary Judgment is denied.
BACKGROUND
In this district, Local Rule 56.1 governs the procedures for parties moving for and
responding to summary judgment. Along with a memorandum in support and relevant evidence
required by Rule 56(e), Local Rule 56.1 requires the moving party to include a statement of
material facts as to which they contend there is no genuine issue and that entitle them to
judgment as a matter of law. L.R. 56.1(a)(3) The party opposing the motion must respond to the
movant’s Local Rule 56.1 statement with a concise response to the movant’s statement,
containing a response to each numbered paragraph in the moving party’s statements and
separately, a concise statement of additional facts that require denial of summary judgment. L.R.
56.1(b)(3).
Rule 56.1 “serves an important function by ensuring that the proposed findings of fact are
in a form that permits the district court to analyze the admissible evidence supporting particular
factual propositions and determine precisely what facts, if any, are material and disputed.”
Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630 (7th Cir.2010). When reviewing
Rule 56.1 statements, the court is not required to “wade through improper denials and legal
argument in search of a genuinely disputed fact.” Bordelon v. Chic. Sch. Reform Bd. of Trs., 233
2
F.3d 524, 529 (7th Cir. 2000). District courts are entitled to require strict compliance with Local
Rule 56.1. See Boss v. Castro, 816 F.3d 910, 914 (7th Cir. 2016) (collecting cases). “[A] court
does not abuse its discretion when it opts to disregard facts presented in a manner that does
follow the Rule's instructions.” Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008).
Defendants moved to strike Dr. Rao’s Rule 56.1 Statement of Additional Facts and his
Responses to Defendants’ Rule 56.1 Statement of Material Facts because they included: (1)
legal conclusions or argument;2 (2) were predicated on hearsay or lacked foundation;3 (3) relied
on unauthenticated documents or inadmissible evidence;4 or (4) were not support by the cited
evidence.5 The Court routinely takes these motions to strike under advisement with the motions
for summary judgment as they are disfavored in this district and rarely say more than the
equivalent of “follow the rule.” This time, however, the Court agreed with Defendants because
of the wide variety of flagrant violations of Local Rule 56.1. Rather than merely striking the
statement, as the Court could have done, however, the Court permitted the Plaintiff an
opportunity to revise his Statement of Additional Facts.6 (See Dkt. 285.) Dr. Rao did so on April
28, 2017, but this statement failed to cure many of the defects that plagued his original Local
Rule 56.1 Statement of Additional Facts. As a result, as set forth below, the Court disregarded
many of his statements and responses that failed to comply with Local Rule 56.1.
2
Pl. SOAF ¶¶ 2-3, 5-7, 9-24, 26-29, 32, 34-38, 40-44 and 45.
Pl. SOAF ¶¶ 7, 18, 24, 33, 35, 38, 42 and 44.
4
Pl. SOAF ¶¶ 1, 4-6, 8-13, 15-19, 22-26, 29-30, 32, 35-39 and 41; Pl. Response to Defs’ SOF ¶¶ 24, 27-31, 35-36,
39-44, 47-48 and 61.
5
Pl. Response to Defs’ SOF ¶¶ 20-28, 30-32, 35-44, 47-52, 59, 61, 77-78 and 79; Pl. SOAF ¶¶ 1-45.
6
Dr. Rao’s Reply to the Defendants’ Local Rule 56.1(b)(3)(B) Response will also be disregarded, as it fails to
comply with Rule 56.1 and Rao did not seek leave of Court to file the document. Courts within this district have
repeatedly stricken such replies. See Pulliam v. City of Chi., No. 08 C 7318, 2010 WL 3238837, at *4 n. 2 (N.D. Ill.
Aug.12, 2010); Cent. States, Se. & Sw. Areas Pension Fund v. Sara Lee Bakery Grp., 660 F.Supp.2d 900, 908–09
(N.D. Ill. 2009).
3
3
Without leave of court, Local Rule 56.1 limits parties responding to summary judgment
to the use of 40 statements of additional fact. L.R. 56.1(b)(3)(C). Dr. Rao originally sought and
was granted leave to submit five additional facts. (See Dkt. 256.) Even with permission to file
additional facts, the majority of his statements of additional fact included multiple assertions of
fact, with some statements comprising more than 10 assertions of fact. Although his revised
statement includes less facts than his original stricken statement, Plaintiff’s revised statement of
additional facts includes over 150 facts in 45 paragraphs--almost quadruple the amount of facts
permitted by rule. L.R. 56.1(b)(3). Indeed, each statement should be limited to only one or two
factual propositions.
See Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)
(“The numbered paragraphs should be short; they should contain only one or two individual
allegations, thereby allowing easy response.”) (quoting Malec v. Sanford, 191 F.R.D. 581, 583
(N.D. Ill. 2000)). All but two of Plaintiff’s revised statements include more than one factual
proposition and a significant number contain four or more factual assertions. (See, e.g., Dkt. 286
¶¶ 12, 15, 17-18, 22, 24, 27, 30-32, 34-35, 37-38, 40-42, 44-45.) In spite of being given an
opportunity to correct the previous filing and in spite of this Court’s warning, Plaintiff continued
to file multiple fact statements within each individual statement.
The Court, therefore,
disregarded any fact after the fourth statement – more leniency than Plaintiff deserved under the
circumstances.
Several of Dr. Rao’s statement of additional facts and responses to Defendants’ Local
Rule 56.1 statement also include legal and factual argument that must be disregarded. See
Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 359 (7th Cir.2009) (holding that where “much
of [the party's] factual submission was argumentative” it was appropriate to strike it); Judson
Atkinson Candies v. Latini–Hohberger Dhimantec, 529 F.3d 371, 381 n. 2 (7th Cir.2008) (“It is
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inappropriate to make legal arguments in a Rule 56.1 statement of facts.”). Legal arguments are
the province of the supporting memorandum of law provided for by Rule 56.1(b)(2).
Defendants also object to a number of Dr. Rao’s Statement of Additional Facts because
the evidence cited in support includes unauthenticated documents. Rule 56(c)(2) permits a party
to object “that the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence,” but Defendants do not assert that these exhibits cannot be
authenticated, only that they were not authenticated. Many of the challenged documents were
produced by Defendants or their agents during discovery and are likely to be authenticated at
trial. As a result, for the purposes of summary judgment, Defendants’ objections relating to
unauthenticated documents are overruled because “federal courts routinely consider
unauthenticated documents on motions for summary judgment, for example, when it is apparent
[ ] that such documents are capable of reduction to admissible, authenticated form.” Boyce v.
Wexford Health Sources, Inc., No. 15 C 7580, 2017 WL 1436963, at *3 (N.D. Ill. Apr. 24,
2017); see also Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014) (noting that summary
judgment materials may “be inadmissible at trial so long as facts therein could later be presented
in an admissible form.”) (citing Fed. R. Civ. P. 56(c)(2)-(4)).
The Court, however, disregarded all factual assertions that lack proper foundation or
where the cited material failed to support the purported assertion of fact.
See Jordan v.
Summers, 205 F.3d 337, 344 (7th Cir.2000) (“[C]onclusory statements, indications of opinion, or
speculation [ ] do not produce a genuine issue for trial under Rule 56(c).”); Curry v. City of Chic.
No. 10 CV 8241, 2013 WL 1283477, at *8 (N.D. Ill. Mar. 25, 2013) (striking supplemental
exhibits for failure to comply with Local Rule 56.1, lack of foundation, and hearsay); see also
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Smith v. Allstate Ins. Corp., No. 99 C 0906, 2002 WL 485374, at *4 (N.D. Ill. Mar. 29, 2002)
(striking portions of plaintiff's affidavit that provide no foundation for her statements).
A number of Dr. Rao’s responses to Defendants’ Statement of Facts and Statement of
Additional Facts and responses to Defendants’ Additional Statement of Fact assert facts that do
not respond to Defendants’ various factual assertions. To the extent that the non-movant wishes
to assert facts that go beyond the scope of responding to the movant’s facts, he must do so in his
statement of additional facts and it is appropriate to disregard such extraneous material. See L.R.
56.1(b)(3)(C). See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)
(finding that district court did not abuse its discretion in striking responses that added “other
additional facts”); Johnson v. Cnty. of Cook, 2012 WL 2905485, at *12 (N.D. Ill. July 16, 2012)
(“It is inappropriate for a non-movant to include additional facts, meaning facts extraneous to the
substance of the paragraph to which the non-movant is responding, in a Local Rule 56.1(b)(3)(B)
response. Rather, Local Rule 56.1 requires specifically that a litigant seeking to oppose a motion
for summary judgment file a response that contains a separate statement under Local Rule
56.1(b)(3)(C) of any additional facts that require the denial of summary judgment.”) (citations
and internal quotation marks omitted). As a result, the Court disregarded those extraneous
assertions of fact and only considered facts in those responses that were relevant to establishing a
dispute.7 See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) (Local Rule 56.1 statements
that contain “irrelevant information, legal arguments, and conjecture” do not comply with the
Local Rules); Levin v. Grecian, 974 F. Supp. 2d 1114, 1117–18 (N.D. Ill. 2013) (ignoring
“extraneous matter” in Plaintiff’s Local Rule 56.1(b)(3)(B) responses, but taking into account
“facts included in those responses that are relevant to showing that [] Local Rule 56.1(a)(3)
7
See, e.g., Pls. Response to Defs’ SOF ¶¶ 19, 22, 23-32, 35-36, 38-44, 46-49, 51-52, 54, 59-61, 69, 77,
79 and 80.
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assertions are genuinely disputed”). Consistent with the foregoing, the Court reviewed each
Local Rule statement carefully and disregarded any intertwined argument, conclusion or
unsupported fact.
The following facts, therefore, are the ones drawn from the supported and uncontested
aspects of both parties’ Statements of Facts and Statement of Additional Facts after this
painstaking process has been applied and are undisputed unless otherwise noted.
Factual Background
Dr. Jasti Rao, is an Indian-born cancer researcher who was employed by the University of
Illinois College of Medicine at Peoria from January 2001 until his resignation in March 2013.
(Def. SOF ¶ 1; Pl. SOF ¶ 1.) Dr. Rao describes himself as an internationally renowned cancer
researcher. The University originally hired Dr. Rao as a visiting professor in 2001 and then in
2002 or 2003, he became the program director for the University’s Cancer Research Center, an
appointed position, and a tenured professor. (Def. SOF ¶¶ 7-8; Pl. SOF ¶ 1.) In addition to being
the Director of the Cancer Research Center, Dr. Rao held two other appointed, non-tenured
positions: the head of the Department of Biomedical and Therapeutic Sciences, which became
the Department of Cancer Biology and Pharmacology in 2006, (Def. SOF ¶¶ 7-9) and Senior
Associate Dean of Research to which he was appointed in 2008. (Def. SOF ¶ 9; Pl. SOF ¶ 5.)
These positions were appointed annually and Dr. Rao held these positions for the remainder of
his employment with the University.
(Def. SOF ¶¶ 7, 9; Pl. SOF 2.) At the time of his
resignation, Dr. Rao was one of the University’s five highest-paid employees, along with Dr.
Dimitri Azar, Dean of the University’s College of Medicine, Dr. Joe Garcia, Vice President of
Health Affairs for University, and the head coaches of the University’s football and men’s
basketball teams. (Pl. SOF ¶ 3.)
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Following his appointment to Senior Associate Dean in 2008, Dr. Rao reported to Dr.
Sara Rusch, the Regional Dean for the Peoria campus of the University’s College of Medicine,
who evaluated Dr. Rao’s performance from 2008-2012. (Def. SOF 3, 12; Pl. SOF ¶ 5.) Each
year Dr. Rusch evaluated Dr. Rao’s performance, she rated his performance as outstanding, and
in 2012 she nominated Dr. Rao for two awards, including the Peorian of the Year Award, which
he received. (Def. SOF ¶ ¶12, 13; Pl. SOF ¶ 3.) Dr. Rusch also approved Dr. Rao’s salary,
including for the last academic year of his employment. (Def. SOF ¶ 13.) From 2011 or 2012
onward, Dr. Rusch reported to Dr. Dimitri Azar, the Dean of the University of Illinois College of
Medicine at Chicago, who had a very positive view of Plaintiff and his performance prior to
August 2012. (Def. SOF ¶ 4, 12; Pl, SOF ¶ 6.)
As part of his job duties, Dr. Rao was responsible for a research lab, which included
supervising ten to fifteen employees, and for the policies, procedures, and results of the lab.
(Def. SOF ¶ 10; Def. SOAF ¶ 12.) Dr. Rao was aware that he was responsible for being familiar
with and complying with the University’s policies and procedures, including its equal
employment opportunity policy. (Def. SOF ¶ 11.) As a University employee, Rao was required
to take annual ethics tests that included questions relating to the University’s equal employment
opportunity policy. (Def. SOF ¶ 11.) All but one of the lab’s employees was of Indian national
origin. (Def. SOF ¶ 10.)
On May 21, 2012, Dr. Rao became aware of an error in a paper that he had published
with other scientists. (Def. SOF ¶ 14.) The first author of the paper, Dr. Sravan Vanamala,
informed Dr. Rao through his staff that the error was a result of uploading the paper. (Def. SOF
¶ 14.) Dr. Rao corrected the error through a corrigenda, which according to Dr. Rao, was the
first time in more than 30 years of academic publishing that he corrected a publication. (Def.
8
SOF ¶ 15.) On July 11, 2012, Dr. Rusch met with Dr. Rao after receiving an anonymous letter
accusing Dr. Rao of a variety of malfeasance, including research misconduct and allegations that
he accepted cash payments from his employees.
(Def. SOF ¶ 16.)
Dr. Rao denied any
wrongdoing, including disclaiming the allegation that he took money from his staff. (Def. SOF ¶
17.) Dr. Rao, did however, accept responsibility for any errors in publications published by his
lab as both an author and department chair. (Def. SOF ¶ 17.)
As a result of the allegations, Dr. Rusch told Dr. Rao that she was going to inform Dr.
Azar of the allegations and form an internal committee, which she called a “Dean’s Committee,”
to review the research-related allegations against Dr. Rao. (Def. SOF ¶ 18.) Dr. Rao informed
Dr. Rusch he would cooperate fully in the investigation. (Def. SOF ¶ 18.) After Dr. Azar
became aware of the allegations, he recommended that Dr. Rusch forward her concerns to an
appropriate body for further investigation.
(Pl. SOAF ¶ 41.)
Prior to these anonymous
allegations against Dr. Rao, according to the University’s outside counsel, no complaints had
been submitted to the University regarding Dr. Rao’s management of the lab. (Pl. SOF ¶ 71.)
Dr. Rusch formed a Dean’s Committee, using her sole discretion to select Dr. Pedro de
Alarcon, Dr. Thomas Santoro, and Dr. James Graumlich, all of whom are professors at the
University’s College of Medicine in Peoria, to investigate the research-related allegations against
Dr. Rao. (Def. SOF ¶ 19.) Dr. Rusch testified that she formed the Dean’s Committee because
she was concerned that the allegations could have serious repercussions on Dr. Rao’s career and
she needed advice as to whether the allegations should be forwarded on for a full research
integrity evaluation. (Def. SOF ¶ 20.) Dr. Rao disputes that this was the true purpose of the
Dean’s Committee and points out that a Dean’s Committee is not defined in any University
document. (Dkt. 261 at ¶¶ 30-31; Pl. ¶ SOAF 27.) On July 18, 2012, Dr. Rusch provided the
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Dean’s Committee with a written charge as to expectations regarding their review of the
research-related allegations against Dr. Rao (Def. SOF ¶ 21.) Dr. de Alarcon provided Dr. Rusch
with a preliminary report on August 2, 2012, before the other members had reviewed or
commented on the draft report. (Pl. SOAF ¶ 27.) Dr. Rusch was not aware that the Dean’s
Committee members had not reviewed the preliminary report and she showed Dr. Azar the draft
report. (Pl. SOAF ¶ 27.) On August 7, 2012, the Dean’s Committee issued a final report to Dr.
Rusch, which she forwarded to Dr. Azar. (Def. SOF ¶ 22.) The final report found “several
issues with two manuscripts” published by Dr. Rao’s lab in addition to “an atmosphere of
pressure and tension that may have contributed to the misrepresentation of data.” (Def. SOF ¶
22.)
The Dean’s Committee also found that there were several accusations beyond the scope
and mandate of their charge that should be further investigated, including allegations that lab
employees gave Dr. Rao cash payments to keep their jobs and immigration status, were forced to
work seven days a week, and were asked to perform personal chores for Dr. Rao, including
cooking, gardening, and serving tables.
(Def. SOF ¶ 22.)
The report concluded that the
Committee members could not be impartial due to the importance of Dr. Rao’s lab to the College
of Medicine, where they all worked, and recommended that an “impartial group” should evaluate
and investigate the remainder of the “very serious” complaints. (Def. SOF ¶ 22.) In turn, Dr.
Azar contacted the Provost’s office regarding the allegations against Dr. Rao. (Def. SOF ¶ 23.)
Drs. Rusch and Azar sent the research integrity allegations to Dr. Mark Grabiner, the
University’s Research Integrity Officer, and sent the ethics-related allegations to Donna
McNeely, the University’s Ethics Officer.. (Def. SOF ¶ 23; Pl. SOF 32.)
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Dr. Rao’s Allegations Regarding Dr. Azar, Dr. Garcia and Dr. Prabhakar
In late July or early August 2012, Dr. Rao complained to Dr. Rusch that Drs. Azar,
Garcia and Prabhakar each had errors in some of their publications. (Def. SOF ¶ 80; Dkt. 222-6
at 115:22-116:12; Dkt. 222-3 at 232:23-233:1.)
None of these doctors worked on the
University’s Peoria campus or reported to Dr. Rusch. In fact, Drs. Azar and Garcia were
considered Dr. Rusch’s superiors. (Def. SOF ¶ 81.) Like Dr. Rusch, Dr. Prabhakar, who was
Indian, also reported to Dr. Azar. (Def. SOF ¶ 81.) Dr. Rao asserts that Dr. Azar and Garcia are
not of Indian origin. (Pl. Ex. C ¶ 9.) Dr. Rao did not initially report these errors to the Research
Integrity Officer. (Def. SOF ¶ 80.)
Dr. Azar recalled that he became aware of Dr. Rao’s allegations against him in the
summer of 2012 after Dr. Rusch told him about them. Dr. Rusch, however, had no recollection
of informing Dr. Azar of the allegations against him. (Pl. SOAF ¶ 40.) Dr. Grabiner testified at
deposition that if he would have known about Dr. Rao’s allegations against Dr. Azar, he would
have concluded that Dr. Azar should not be a part of the review process; but the record does not
support that Dr. Azar knew of Dr. Rao’s allegations against him before the review process was
completed nor that Grabiner was aware of Rao’s allegations against Azar. (Pl. SOAF ¶ 40.)
In June 2013, several months after his employment with the University ended, Dr.
Grabiner sent Dr. Rao a letter informing him that separate inquiries were opened into the
allegations he brought against Drs. Azar, Garcia and Prabhakar, and that each Inquiry Team
recommended that a formal investigation was not warranted. (Def. SOF ¶ 82; Dkt. 222-4.)
Specifically, regarding the errors that Dr. Rao had alleged against Dr. Azar, of the three papers
alleged to have errors, Grabiner determined that only one warranted going to the Inquiry stage.
(Pl. SOAF ¶ 35.) Dr. Azar responded to the allegations by providing information to the Inquiry
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Panel. (Pl. SOAF ¶ 35.) The Inquiry Team concluded that Dr. Azar had inserted an incorrect
image into a paper but concluded that there was no evidence of a deliberate intention to deceive.
(Pl. Ex. O; Pl. SOAF ¶ 11.) The Inquiry Team examining Dr. Rao’s allegations against Dr.
Garcia similarly found that the paper included an inadvertent error “that was very likely an
honest” mistake and another “honest” typographical error. (Pl. Ex. Q; Pl. SOAF ¶¶ 11, 13.)
The Ethics Investigation into Dr. Rao
On September 4, 2012, Dr. Rusch and Dr. Azar met with McNeely, the University Ethics
Officer, and others to define a plan of action regarding the allegations against Dr. Rao. (Dkt.
227-6 at 207:9-20.)
Before engaging external counsel in late September 2012, McNeely
interviewed three individuals: Dr. Rao, Peggy Mankin, and Dr. Christopher Gondi. (Def. SOF ¶
24; Pl. SOAF ¶ 39.) Following the initial set of interviews, McNeely chose not to interview
anyone else due to her concerns regarding the nature of the allegations against Dr. Rao and her
concern that additional expertise and time were required to perform the investigation. (Def. SOF
¶ 24, Dkt 222-9 at 47:17-48:4.) At that point, she initiated discussions with internal counsel
regarding engaging external counsel to take over the investigation. (Id.) Before external counsel
was engaged, McNeely also contacted the University’s audit department for any prior audits of
Dr. Rao’s lab and reviewed financial information related to relevant grants. (Def. SOF ¶ 24.)
In late September 2012, the University retained Kaye Scholer, and two of their white
collar crime attorneys, Zaldwaynaka Scott and Eric Sussman, to evaluate the evidence and make
a determination as to whether any of the allegations against Dr. Rao were significant and
corroborated. (Def. SOF ¶¶ 25-26; Pl. SOF ¶¶ 9-11.) Kaye Scholer’s investigation evaluated the
list of twelve allegations lodged against Dr. Rao and concluded that ten of those allegations were
not supported by sufficient evidence. (Def. SOF ¶ 27; Pl. SOF ¶ 13.) Kaye Scholer believed that
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two allegations were significant and supported by evidence and provided the University with
relevant information regarding their conclusions. (Def. SOF ¶ 27.)
Kaye Scholer concluded that Dr. Rao required at least one employee, Dr. Gondi, to pay
Dr. Rao back over $15,000 of his salary between July 16, 2010 and June 2012, which was
funded in part by federal grants. (Def. SOF ¶¶ 28-29.) This conclusion was supported by Dr.
Gondi’s statements, video footage secretly taken by Dr. Gondi in July 2010 showing Dr. Gondi
providing money to Dr. Rao, and Dr. Gondi’s bank records (Def. SOF ¶ 28.) In interviews with
Kaye Scholer during their investigation, Dr. Rao denied ever loaning or otherwise receiving
money from anyone working for him. (Def. SOF ¶ 29.) Kaye Scholer concluded that Dr. Rao
had a need for cash without his wife’s knowledge due to a gambling problem. (Def. SOF ¶ 30.)
As a result, Kaye Scholer determined that Dr. Rao needed to obtain large sums of money from
India to the United States without his wife’s knowledge, supporting Dr. Gondi’s claim that Dr.
Rao asked him to transport large sums of cash in violation of U.S. law. (Def. SOF ¶ 30.) Dr.
Rao admittedly that his wife had issues with his gambling and that he told his wife that he would
try not to gamble to make her happy but did not stop gambling. (Def. SOF ¶ 54.) Dr. Rao’s wife
was not aware of how much time he spent in casinos but believed that gambling was his way to
release stress. (Def. SOF ¶ 54; Pl. SOAF 18.) Dr. Rao made more than $800,000 annually and
testified that he could gamble if he wanted to do so. (Pl. SOAF ¶ 18.) The Par-A-Dice Casino
was issued markers8 to Dr. Rao and by the in the spring of 2010 and Dr. Rao was late in paying
other markers issued on March 30, 2010 and May 3, 2010. He was also late in repaying a
$75,000 marker in July 2010, and others issued in January and February 2011. (Def. SOF ¶ 56.)
After these incidents, Dr. Rao’s credit was suspended by the par-A-Dice Casino. (Def. SOF ¶
57.) Plaintiff admitted to gambling during the weekday hours of 8 am or 9 am to 5 pm, while
8
Markers are a type of loan issued by casinos
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employed by the University. (Def. SOF ¶ 60.) Following his resignation, Plaintiff placed
himself on the Voluntary Self-Exclusion List for casinos following his resignation. (Def. SOF ¶
60.)
Plaintiff questions Dr. Gondi’s motivations and points out that Dr. Rusch informed Kaye
Scholer during the investigation that she believed Dr. Gondi was making the allegations against
Dr. Rao because Gondi’s career at the University was coming to an end since his performance
was subpar and he was unlikely to receive tenure. (Pl. SOAF ¶ 19.) In fact, Dr. Gondi also
acknowledged that he had engaged in research misconduct. (Pl. SOAF ¶ 19.) To support his
position that Dr. Gondi’s motivations were to protect himself, something which is rather
immaterial to the end result of the investigation, Dr. Rao points out that Dr. Gondi edited some
of transcripts of the audio recordings that were sent to Kaye Scholer. (Pl. SOF 64) Gondi was
one half of the conversation on the recordings and so was asked to review the transcript of the
recordings for accuracy as one of the speakers.
Dr. Rao also takes issue Kaye Scholer’s investigative tactics.
(Pl. SOAF ¶ 20.)
Specifically, Rao challenges the manner in which the Kaye Scholer lawyers interviewed
witnesses by informing them that they had information about them prior to their interview. For
example, Dr. Chetty, a lab employee testified that Sussman told him that Kaye Scholer had bank
records of lab employees and that Dr. Chetty’s bank records showed withdrawals corresponding
to deposits made by Dr. Rao. Additionally, Dr. Desari, another lab employee, reported that
University attorneys told him that other lab employees had given Dr. Rao money. (Pl. SOAF ¶
20.) . Rao also takes issue with the fact that Sussman contacted the United States Attorney’s
Office (“USAO”) (where Sussman was a former Assistant United States Attorney) to report
allegations regarding him and that he also passed along information regarding Dr. Rao’s
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statements made during the internal investigation to the USAO. (Pl. SOAF ¶ 21; Pl. SOF ¶ 15.)
Sussman affirmed that he had done so because his client, the University, had an affirmative
obligation to report any potential misuse, misappropriation or fraud involving federal funds (and
the money paid to Gondi was a part of a federal grant). (Dkt. 259 at 218:3-22.) Sussman also
reported the information regarding Gondi’s alleged transportation of large sums of cash for Dr.
Rao (assumedly as a potential violation of federal reporting laws). (Def. SOAF ¶ 2.)
Sussman
testified that he did not tell anyone at the University that the USAO directed him to place
restrictions or limitations on Dr. Rao. (Pl. SOF ¶ 52.) Instead, Sussman recalled that the USAO
originally instructed the University not to share information regarding the USAO investigation,
but at some point prior to the March 21 meeting, Sussman confirmed with the USAO was
comfortable with Kaye Scholer relaying information about the investigation to Dr. Rao. (Dkt.
227-8 252:10-253:21.) Kaye Scholer never requested Dr. Rao’s bank records and never asked
him to sign a release for his gambling records (Def. SOF ¶ 23.)
Rao also takes issue with Kaye Scholer’s conclusion regarding professional errors in his
publications. Kaye Scholer concluded that there was sufficient evidence to support the allegation
that Dr. Rao concealed a number of publication errors by the lab and further destroyed or
directed others to destroy summaries of a review of the lab’s papers screening for errors. (Def.
SOF ¶ 24, Dkt 222-9 at 47:17-48:4.)
Kaye Scholer concluded that this allegation was
corroborated by an audio recording of Dr. Rao instructing employees to delete the summaries in
addition to a forensic examination of computers, which showed that documents were deleted.
(Def. SOF ¶¶ 31-32.) The forensic review was limited to the review of electronic material. (Pl.
SOF ¶ 63.) Kaye Scholer did not interview Dr. Rao about the deletion of the summaries or ask
him if he had a copy of the summaries, nor did McNeely ask Dr. Rao or instruct anyone to ask
15
whether Dr. Rao had those documents. (Pl. SOAF ¶ 16; Pl. SOF ¶¶50, 55, 57.) Sussman also
did not ask Dr. Rao about the substance of the summaries, because he was focused on the
concealment of evidence and Dr. Rao’s direction to delete the summaries. (Def. SOAF ¶ 7.) Dr.
Rao never told Sussman about the summaries. (Def. SOAF ¶ 8.)
With his attorney present, Dr. Rao was interviewed by Kaye Scholer on October 24,
2012, and at that time told the interviewers that his staff had reviewed the publications and had
identified only three papers with errors. (Def. SOF ¶ 33.) Sussman interviewed Rao again in
December 2012, and again told Sussman that there were only three papers with errors. (Def.
SOF ¶ 34.)
Based on her review of one of the recorded conversations, McNeely concluded that Dr.
Rao was being secretive regarding the amount of errors made by his lab and that he directed his
staff to delete and not to share certain information. (Dkt. 227-6 at 218:21-219:13.) McNeely
agreed that it would not be improper for Rao to tell his employees to come to him with errors and
not to talk to others in the lab about it. (Pl. SOF ¶ 60.)
Yet, McNeely dismissed Rao’s
statement that he was attempting to identify errors and get those errors fixed, after listening to
the recording of the conversation between Gondi and Rao as not very credible (Pl. SOF ¶¶ 61,
70; Def. SOAF ¶ 11.)
McNeely concluded this because she had never seen someone look for
errors or have others look for errors and then delete the support of them. (Pl. SOF ¶ 67.)
McNeely was focused on the deletion of documents. (Dkt. 258 ¶ 68.)
During the investigation, other than Dr. Gondi, all other lab employees denied being
afraid of Dr. Rao when asked by outside counsel. (Def. SOF ¶ 36.) Scott; however, concluded
otherwise, after listening to a recorded conversation between Rao and his staff which she
determined to be threatening and menacing. (Def. SOF ¶ 35.) Sussman further found that there
16
was an atmosphere of fear and stress in Rao’s lab, which he attributed to Rao’s management
style and the fact that many of the lab’s employees relied on their jobs to stay in the country.
(Def. SOF ¶ 35.) Kaye Scholer informed McNeely that they believed that the lab employees
other than Gondi were not being truthful because they were afraid of Rao. (Dkt. 222-11 at
226:11-229:21.) Sussman based his assessment on the witnesses’ demeanor and recordings of
Rao which included Rao threatening the careers of employees who spoke poorly of the lab.
The Research Integrity Investigation
In the fall of 2012, the research integrity allegations concerning errors in papers
published by Rao’s lab were sent to Dr. Mark Grabiner, the University’s Research Integrity
Officer. (Def. SOF ¶ 23.) McNeely testified that she and Grabiner were careful to keep the
ethics investigation separate from the research integrity investigation.
(Pl. SOAF ¶ 42.)
Grabiner oversaw the procedures surrounding the allegations of research misconduct. (Pl. SOAF
¶ 3.) The research integrity process begins with a determination as to whether the matter should
be reviewed by an Inquiry Team. (Pl. SOAF ¶ 1.)
In his role as Research Integrity Officer,
Grabiner reported to Dr. Mitra Dutta, the University’s Vice Chancellor for Research. (Pl. SOAF
¶ 4.) During the pre-inquiry stage, Grabiner did not consult with Rusch. (Def. SOF ¶ 61.) As the
pre-inquiry stage was concluding, Grabiner met with either Dr. Azar or Dr. Tobacmen, the
Associate Dean of the University’s medical school, and decided to move to the process to the
inquiry stage. (Def. SOF ¶ 61.)
On October 4, 2012, Dr. Grabiner sent a letter to Rao re informing him that the
University was initiating an inquiry into allegations of potential misconduct in regards to five
publications. (Def. SOF ¶ 62.) Rao was the last author of four out of five of the publications,
meaning that he was responsible for fixing problems with the publications. (Def. SOF ¶ 62.)
17
Grabiner then established the Inquiry Team with three members, though other inquiry panels
established by Grabiner consisted of only two members and Grabiner could not recall why he
selected three members on Rao’s Inquiry Panel. (Pl. SOAF ¶ 28.) Prior to the Inquiry Team’s
work being conducted, the University informed Rao that the team comprised Dr. Rhonda
Kineman, Dr. Beatrice Yue, and Dr. Thomas Guenther. (Def. SOF ¶ 63.) Although given an
opportunity to challenge any of the proposed Inquiry Team members, Rao stated that team
members were fine with him. (Def. SOF ¶ 63.)
Although he could not recall another inquiry where the respondent was not interviewed,
Grabiner did not seek to interview Rao because the evidence against him was overwhelming that
misconduct had occurred. (Pl. SOAF ¶ 35.) (Pl. SOAF ¶ 35.) Rao also asserts that he prepared
a letter to correct an error in one of the papers before the inquiry began but according to Dr. Rao,
the letter was not provided to the Inquiry Team. (Pl. SOAF ¶ 36.)
On December 17, 2012, the Inquiry Team sent Rao their report, which found that further
investigation was warranted into the four publications where he was listed as the last author in
addition to thirteen other publications. (Def. SOF ¶ 64.) Dr. Rhonda Kineman, one of the
members of the Inquiry Team broadened the scope of the inquiry. (Pl. SOAF ¶ 10.) The Inquiry
Team did not consider the fifth publication of the original set of papers under review because it
was more than six years old. (Def. SOF ¶ 64.) On December 20, 2012, Rao responded to the
Inquiry Team and concluded that the data duplication issue in a paper where he was the last
author and Dr. Vanamala was the first author was intentional on Dr. Vanamala’s part. (Def. SOF
¶ 65.) Rao also responded that of the additional thirteen papers under review, eleven needed to
be corrected. (Def. SOF ¶ 65.) Rao was not limited in the information that he could give to
Grabiner in his response. (Def. SOF ¶ 65.)
18
On January 8, 2013, Dr. Mitra Dutta, the Vice Chancellor for Research, informed Dr.
Rao that she agreed with the Inquiry Team’s recommendation and ordered that an investigation
into the allegations be conducted. (Def. SOF ¶ 66.) The University informed Dr. Rao of the
allegations against him on February 8, 2013, and the composition of the Investigation Panel on
February 21, 2013. (Def. SOF ¶ 66.) On March 1, 2013, Rao challenged the composition of the
Panel. On March 20, 2013, the University informed Rao of a change to the Panel. (Def. SOF ¶
67.) Rao was given another opportunity to object to the composition of this newly comprised
Panel which included Dr. Maciej S. Lesniak, Dr. Nalin M. Kumar, and Dr. Alan Diamond. He
did not challenge the new Panel. (Def. SOF ¶ 67.) The Investigation Panel interviewed Rao on
February 27, 2014 with his attorney present. (Def. SOF ¶ 68.) The University gave Rao the
opportunity to provide any information that he wished to the Investigation Panel. (Def. SOF ¶
68.) In his interview with the Investigation Panel. Rao indicated that as part of his oversight of
the publications, he reviewed “every figure.” (Def. SOF ¶ 69.) Rao also indicated that he was
responsible for the lab’s grants and publications. (Def. SOF ¶ 69.)
In February 2013, Rusch and Azar attended a Board meeting where the issue of Rao and
the internal investigation was discussed. (Pl. SOAF ¶ 43.) McNeely, however, does not recall
Drs. Rusch or Azar being present at the meeting where it was decided that Dr. Rao would be
presented with the evidence of Kaye Scholer’s investigation, although Dr. Rusch was aware that
the meeting was going to take place and McNeely informed her that she hoped Rao would
resign. (Dkt. 227-6 at 263:14-23; Dkt. 227-3 at 171:13-23.) Azar and Rusch were also part of
conversations, with various updates, leading up to the decision to offer Dr. Rao the opportunity
to resign. (Dkt. 227-6 at 14-23.) Dr. Rusch testified that outside of being interviewed by Kaye
19
Scholer and a meeting she had with McNeely in late February or early March 2013, she did not
receive any other updates from them. (Dkt. 227-3 at 167:14-24.)
March 21, 2013 Meeting
On March 21, 2013, Dr. Rao and his personal attorney attended a meeting with Scott,
Sussman, and the University’s employment counsel, Monica Khetarpal, of Jackson Lewis. (Def.
SOF ¶ 40-41; Pl. SOF ¶ 16.) No other University employees were present at meeting. (Pl. SOF
¶ 17.) The University authorized Kaye Scholer to act on its behalf and present the evidence of
the investigation. (Dkt. 258 ¶ 18.) At the time of the meeting, no one had made a determination
about Rao’s employment status. (Def. SOF ¶ 50; Pl. SOAF ¶ 6.)
The meeting was scheduled with little notice to Rao. Sussman was aware that Rao had
some recent stress-induced health issues and that his father-in-law had recently passed away.
(Pl. SOAF ¶ 24; Pl. SOF ¶ 23.) McNeely, who did not attend the meeting, was not aware of Dr.
Rao’s hospitalization but was aware that Rao had some recent weight loss and health concerns.
(Pl. SOF ¶ 24
The Kaye Scholer lawyers presented a PowerPoint presentation embedded with some
recorded conversations. The following excerpts were played for Rao at the meeting:
RAO: I want let you guys know one thing, okay? If you guys scared and talk
nonsense, it is not going to help anybody. Except one or two people don’t have a
data duplication, okay? Everybody have somehow or other there is a duplication.
Okay? I will show each individual where their overlaps are. And we find except
one or two people. That’s it. (July 17, 2012) (Slide 4)
RAO: Minor mistakes I will definitely ignore, otherwise it is coming to almost
thirty, forty papers. I can’t go that many papers. That way I can tell simply,
“Those are minor, that’s why I ignored.” And as long as you guys also has to keep
that secret. If that secret come out and your career done. I am telling you honestly.
(July 17, 2012) (Slide 5)
RAO: If somebody think that the lab is going to be in trouble, and if they leave
someplace and if they joined any place, they may not have a job there. I will
20
immediately respond and send them, “These people did a scientific fraud that’s
why they left the lab.” (July 17, 2012) (Slide 6)
RAO: I’m going to take care of it as long as you guys don’t talk nonsense. And
then if you guys think that, and then “oh, I can go and get a job,” you’ll never get
in scientific field a job. If you get a job, also, I promise God, your job is removed
yesterday, because of the scientific fraud. I’m not that dumb, and I’m very
capable to go any extreme. (July 17, 2012) (Slide 7)
RAO: When it came out, and I have to look everybody’s. That’s why few people
are helping. And then also, then somebody find a mistake, don’t think they’re
personally looking. I requested them. I don’t have time, that’s why they’re
helping me to look. I really appreciate their time, and look very careful. (July 17,
2012)(Slide 8)
RAO: But I can’t go and show all the mistakes, all the small mistakes, I can’t do
it. Only a few things then we can tell. Rest of the things we have to keep
ourselves. That’s why I told whoever reviewed, and then I already told them to
discard everything, and then computer also they then delete. And I already told
them, they already did. (July 25, 2012)(Slide 9)
(Def. SOF ¶ 42.)
The PowerPoint presentation also included audio and video clips of Rao refusing to
accept a check from, Gondi and instead insisting on cash and then accepting an envelope
containing cash from Gondi. (Def. SOF ¶ 40-41; Pl. SOF ¶ 16.) During the meeting, the Kaye
Scholer attorneys informed Rao that he had previously told them that he had not loaned money
to his employees. (Def. SOF ¶ 46.)
Rao’s attorney did not disagree with this description of
Rao’s past statements to the Kaye Scholer lawyers. Sussman offered to hear an explanation of
what the envelope of cash was for during the interview and during the weekend following the
meeting. Rao’s attorney never offered any explanation for why Rao took cash from Gondi.
Although Sussman informed him he would be open to hearing an explanation, he admitted that it
was unlikely that any explanation would make a difference. (Def. SOF ¶ 46; Def. SOAF ¶ 6;
Dkt. 227-8 at 180:24-181:2.)
21
During the confrontation meeting, Sussman denied Rao’s attorney’s request to listen to
the entire audio recording indicating that the University did not wish to engage in full discovery
at that point and only played parts of the recordings were therefore played during the meeting.
(Pl. SOAF ¶¶ 22, 24.) McNeely testified that the University did not tell Sussman that Plaintiff
would not be allowed to hear the entire audio recordings, but she subsequently agreed with that
decision. (Pl. SOF ¶ 54.) The March 21st meeting was the first time Rao had seen the video of
him accepting cash from Gondi. (Pl. SOF ¶ 48.) Sussman did not provide Rao with a copy of
the PowerPoint presentation shown to him during the meeting. (Pl. SOF ¶ 34.) Sussman did not
ask Rao any questions during the presentation although Rao made some unsolicited comments at
the meeting. Nevertheless, Sussman informed Dr. Rao and his counsel that he did not think that
anything Dr. Rao told them was going to make a difference. (Pl. SOF ¶¶ 34, 48.) McNeely
concluded that Rao failed to provide a plausible explanation as to why he accepted cash from
Gondi.
(Def. SOF ¶ 41.)
During the confrontation meeting, Sussman, with McNeely’s
knowledge, told Rao for the first time that the USAO was investigating the allegations against
him. (Pl. SOAF ¶¶ 24, 44; Pl. SOF ¶ 28.)
At the time of the meeting, the University chose to limit Plaintiff’s access to University
property, computer systems, and the University collected his University-issued laptops and
electronics shortly after the meeting. (47-48; Pl. SOF ¶ 40.) Khetarpal, one of the Kaye Scholer
attorneys at the meeting, informed Rao that his University access was restricted but did not say
how long the restriction would last. (Pl. SOF ¶¶ 29, 25.)
Khetarpal, with the University’s
authorization, informed Rao that the University was prepared to take action to relieve him of all
of his titles and duties and that in the meantime he would not be permitted to work. (Pl. SOF ¶¶
27, 36.) Rao understood this to mean that he was being terminated. (Pl. SOF ¶ 72.) During the
22
meeting, the attorneys offered Rao, through his attorney, the opportunity to resign his position.
(Def. SOF ¶ 43.) Khetarpal informed Rao that if he chose to resign, he could have some control
over the message regarding his departure from the University and could potentially avoid a
protracted tenure removal process. (Def. SOF ¶ 43.) Although Rao does not recall anyone
telling him he was terminated, he believed he was being terminated. (Def. SOF ¶ 44) Rao was
aware of the rights of tenured professors which would require a hearing before the University
Board of Trustees, was aware that the University of Illinois statutes governed his removal, had
participated in at least one removal proceeding in the past, and was represented by counsel.9
(Def. SOF ¶ 45.) (Dkt. 227-5 at 97:16-18.)
. McNeely preauthorized the actions of the Kaye Scholer lawyers at the meeting
including limiting Rao’s access to the University computer systems.
(Pl. SOF ¶ 20, 37.)
McNeely authorized the limitation on access through the weekend until Rao notified them of his
decision. (Pl. SOF ¶ 42; Def. SOAF ¶ 4.) Rusch knew that Rao’s access to his office and the
University computer systems would be restricted since her assistant made the arrangements to do
so, but the decision to restrict access was made by McNeely. (Pl. SOAF ¶ 45; Pl. SOF ¶ 41.) As
a result, Rusch did not expect that Rao could perform the same level of work as before. (Pl.
SOAF ¶ 45.)
Sussman testified that Rao’s access was limited to protect the integrity of
documents and the personal safety of University employees. (Def. SOF ¶ 47.) McNeely also
testified that the restriction was applied due to the prior forensic review which indicated that files
had been deleted shortly before the meeting. (Def. SOAF ¶ 4.) McNeely was aware that Rao’s
9
Dr. Rusch and Dr. Rao were both involved in the multi-year process to terminate the employment of a non-Indian
professor, Dr. Weber, who reported to Dr. Rao. (Pl. SOAF ¶ 33.) Dr. Rusch attended the meetings and hearings
that were held regarding Dr. Weber, and followed up with Dr. Rao to ensure the University’s policies were being
followed. (Pl. SOAF ¶ 33.)
23
hard drives could have been imaged in less than one day, allowing him the ability to continue his
work over the weekend, but decided not to take that step and instead directed that Rao be
escorted to his home by security to retrieve his University electronics. (Pl. SOF ¶¶ 44, 45.)
Ms. McNeely knew that outside counsel was going to discuss the existence of the
USAO’s investigation with Dr. Rao at the meeting so that he had a fair and appropriate
understanding of the severity of the information and the evidence so that he could make an
informed decision. (Dkt 227-5 at 94:10-23; Pl. SOF ¶ 33.) McNeely testified that everyone
involved in the decision agreed the USAO investigation should be included in the “script.” (Pl.
SOF ¶ 33.)
McNeely chose to restrict Rao’s access to the University’s network because the
University had just confirmed around that time that the files had been deleted. (Pl. SOF ¶ 39.)
After the meeting, McNeely updated Rusch and informed her that the University was waiting for
Dr. Rao’s response. (Pl. SOAF ¶ 34.)
Sussman told Rao during the meeting that he would need to give the University his
decision by Monday, March 25, 2013 at 9 a.m. (Def. SOF ¶ 51; Pl. SOF ¶ 26.) McNeely chose
the deadline in order to allow the University an opportunity to determine whether it was going
take steps to make the investigation public and start the process of removing Rao from his
positions. (Pl. SOF ¶ 26; Dkt. 227-5 at 111:15-113:20; Def. SOAF ¶ 9.)
The day after the meeting, on March 22, 2013, Sussman sent an email to University
counsel and McNeely relaying a conversation he had with Rao’s attorney where Sussman told
Rao’s attorney that he had received a media inquiry but would hold off to give Rao a “chance to
get his ducks in order” and that Rao’s attorney indicated that he believed Rao would resign,
which Sussman described as good news. (Pl. SOAF ¶ 25.) Dr. Rao’s attorney told Sussman that
Rao had made up his mind within hours of the meeting and therefore Rao never asked for
24
additional time to consider his decision to resign (Def. SOAF ¶ 3.)
On March 25, 2013, Rao
submitted a written resignation letter to the University through counsel informing the University
that he was resigning from both his administrative positions and his tenured faculty position.
(Def. SOF ¶ 52.) Prior to submitting his resignation, Rao spoke with and corresponded with his
attorney. (Def. SOF ¶ 53.) He also spoke with his children, who are attorneys and who strongly
recommended that he not resign. (Id.) Dr. Rao’s wife also counseled him that he should not
resign. (Id.)
On January 26, 2014, Rao filed this federal lawsuit against the University, and Drs.
Rusch and Azar claiming they discriminated against him by interfering with his employment
relationship based on his national origin—Indian, retaliated against him, and deprived him of
Due Process and Equal Protection.
Conclusion of the Research Integrity Inquiry
On July 2, 2014, more than 15 months after his resignation, and seven months after filing
his federal lawsuit, Rao received a draft of the Investigation Panel’s report, to which he
responded through his attorneys.
(Def. SOF ¶ 70.)
Rao received the final report dated
September 29, 2014. (Def. SOF ¶ 70.) In the final report, the Investigation Panel found that all
of the papers under review suffered significant departures from accepted practice of the relevant
professional community. (Def. SOF ¶ 71.) The Panel also concluded that there were a number of
instances in which “figures were duplicated, several with manipulation, and one figure
plagiarized, in what was perceived by the Investigation Panel members as attempts to render the
figures unrecognizable, lead[ing] to the conclusion that the practice was prevalent in the lab
group and may have existed as an organized and encouraged behavior.” (Def. SOF ¶ 71.) The
Investigation Panel, however, concluded that it “could not reach the level of confidence as
25
indicated by the term ‘preponderance’” to find that Plaintiff was directly responsible for the
issues with the papers under review, finding instead, that he acted recklessly. (Def. SOF ¶¶ 71,
74.)
Dr. Dutta transmitted the final investigation report to the Chancellor for disposition of the
case. Rather than accepting the Investigation Panel’s recommendation, however, Dr. Dutta
recommended that Rao be held responsible for the errors in his lab’s publications because he was
the senior author on the papers, director of the lab, and responsible for the practices under his
supervision and the accuracy of data submitted for publication, emphatic about his oversight of
the manuscripts, and was the individual who received the federal grant. (Def. SOF ¶ 72.) Dutta
found that the errors, which required the manipulation and rotation of images “show a disturbing
pattern” indicative that Rao acted intentionally or recklessly and that the standard of proof had
been met through Rao’s testimony regarding his involvement in the manuscripts, his
understanding of the policies, as well as his acceptance of responsibility. (Def. SOF ¶ 73.) In
coming to her conclusions Dutta reviewed Rao’s testimony, the final report, and met with
Grabiner, who recommended that Rao be held responsible. (Pl. SOAF ¶¶ 4, 14.) On January 6,
2015, Rao received the Chancellor’s response, which supported Dutta’s recommendation. (Def.
SOF ¶ 75.) Rao appealed to the President of the University arguing that the research integrity
process deviated from University policy to the extent that he was deprived of due process. (Pl.
SOAF ¶ 5.) The President affirmed the Chancellor’s decision. (Def. SOF ¶ 75.) In February
2015, the University informed Rao that it had informed the Office of Research Integrity
regarding the results of the research integrity process.
(Def. SOF ¶ 76.)
Rao submitted
corrigenda to correct errors in nine articles. (Def. SOF ¶ 77.) In April 2016, Rao received a
letter from Grabiner informing him that he, along with the Federal Office of Research Integrity,
26
had received new allegations of research misconduct, on figures in twelve publications, four of
which were part of the previous investigation. (Def. SOF ¶ 79.)
Dr. Rao’s Claims of Discrimination
Rao asserts that on September 19, 2012, he met with Dr. Rusch and explained that he
believed he was being discriminated against because the investigation into allegations of his
malfeasance was being pursued more aggressively than a previous investigation into false claims
that Dr. Geiss, another University employee, made about Dr. Rao’s health. (Pl. SOAF 38.) On
September 22, 2012, Dr. Rao sent Dr. Rusch an email reiterating that he believed he was being
discriminated against due to the alleged disparity in how the two investigations were handled.
(Pl. SOAF ¶ 38.) On November 12, 2012, Rao sent another email to Rusch, copying Grabiner
and McNeely, indicating that he felt that he was being subjected to racial discrimination as a
result of the investigation. (Pl. SOAF ¶ 38.) In late November 2012, Rao filed a complaint of
discrimination against Dr. Rusch with the University Office of Access and Equity and the
University ethics office, alleging that Dr. Rusch treated him poorly in connection with an
incident from 2008, when another faculty member falsely accused Rao of having cancer. (Def.
SOF ¶ 37.) In the complaint, Rao also alleged that Rusch favored Dr. Gondi in connection with
the investigation but has conceded that this was not discriminatory, since Gondi is also Indian.
(Def. SOF ¶ 37.) McNeely investigated Rao’s complaint of discrimination and concluded that
Rao was supportive of the action involved with Geiss and was involved in the plan of action in
2008, regarding the false health accusations made by Geiss. (Def. SOF ¶ 38.) Sussman also
investigated Dr. Rao’s complaint regarding the 2008 incident, and passed along his factual
findings to the University’s employment counsel. (Def. SOF ¶ 39.) In January 2014, Rao filed a
27
Charge of Discrimination with the EEOC, alleging discrimination based on national origin and
retaliation. (Def. SOF ¶ 89.)
Jurisdictional Facts
The University is an employer within the meaning of Title VII of the Civil Rights Act of
1964 (Def. SOF ¶ 2; Pl. SOF ¶ 4.) Jurisdiction is proper pursuant to 28 U.S.C. § 1331 because
the case involves federal questions arising under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and under the Civil Rights Act of 1871, 42 U.S.C. § 1983. This Court
also has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Dr. Rao’s state law claims.
(Pl. SOF ¶ 7.) Venue is proper pursuant to 42 U.S.C. § 2002e-5(f)(3) for Plaintiff's Title VII
claims and 28 U.S.C. § 1391 for Plaintiff's remaining claims.
LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Whether a fact is material depends on the underlying substantive law that
governs the dispute. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (citation omitted). “A
factual dispute is ‘genuine’ only if a reasonable jury could find for either party.” Nichols v.
Mich. City Plant Planning Dep’t, 755 F.3d 594, 599 (7th Cir. 2014) (internal quotation marks
and citation omitted).
Because the plaintiff bears the ultimate burden of persuasion, the
defendant’s summary judgment burden “may be discharged by ‘showing’—that is, pointing out
to the district court—that there is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Andrews v. CBOCS W., Inc., 743
F.3d 230, 234 (7th Cir. 2014). “Upon such a showing, the nonmovant must then ‘make a
showing sufficient to establish the existence of an element essential to that party's case.’”
28
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (quoting Celotex, 477 U.S. at 322).
The nonmovant must “go beyond the pleadings…to demonstrate that there is evidence upon
which a jury could properly proceed to find a verdict in her favor.” Id. at 1168-69 (internal
quotation marks and citation omitted). Summary judgment is appropriate where “no reasonable
jury could rule in favor of the nonmoving party.” See Bagwe v. Sedgwick Claims Mgmt. Servs.,
Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation omitted).
DISCUSSION
I.
Exhaustion of Administrative Remedies Dr. Rao’s Title VII Claims
The University first argues that Dr. Rao failed to exhaust his national origin
discrimination and retaliation claims to the extent they are based on the fact that University
officials reversed the findings of the research integrity Investigation Panel decision because that
decision took place long after he filed his EEOC Charge of Discrimination. (Dkt. 220 at 3-4;
Dkt. 86 ¶¶ 56, 61.)
In order to maintain a claim under Title VII, a party must exhaust its administrative
remedies. See Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). The scope of the
subsequent judicial proceedings is limited by the nature of the charges filed with the EEOC. Id.
This ensures that the employer receives notice of the conduct about which the employee is
aggrieved and guarantees that the EEOC and the employer have an opportunity to settle the
dispute. Cheek v. W. & S.Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).
EEOC charges should be construed liberally because they are completed by laypersons.
Cheek, 31 F.3d at 500 (citing Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir.
1992)). A Title VII plaintiff may only bring claims included in his EEOC charge or those that
that are “like or reasonably related to the allegations of the charge and growing out of such
29
allegations.” Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en
banc) (quoting Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971)), cert.
denied, 429 U.S. 986, 97 S.Ct. 506(1976) (internal quotations omitted). “[I]n order for claims to
be reasonably related to one another, there must be ‘a factual relationship between them,’
meaning that at a minimum they must ‘describe the same conduct and implicate the same
individuals.’” Whitaker v. Milwaukee Cty., 772 F.3d 802, 812 (7th Cir. 2014) (quoting Cheek, 31
F.3d at 500) (emphasis in original).
In his EEOC Charge of Discrimination, Dr. Rao alleged that the University’s July 2012
investigation into the integrity of his lab’s research was motivated by discriminatory animus
based on his national origin because on two prior occasions, Dr. Rusch had refused to investigate
anonymous complaints she received regarding her supervisor, Dr. Garcia, yet when she received
anonymous allegations regarding Dr. Rao, she immediately investigated the charges, despite
Rao’s assertions that he had already investigated the allegations against him. (Dkt. 262-2.) Rao
also alleged that Rusch failed to investigate claims that Rao made against other professors and as
the inquiry progressed, he informed the University that he was concerned with the biased nature
of the investigation. (Id. ¶ X.) Rao also alleged that this inquiry eventually led to his forced
resignation. (Id. ¶ XIII.) Rao also alleged that the discrimination was continuing. (Dkt. 262-2.)
Rao’s EEOC Charge of Discrimination, which includes allegations regarding the
discriminatory nature of the research integrity investigation and the University’s alleged
retaliatory acts against him, are sufficiently related to the adverse determination in the research
integrity investigation to preclude a finding that Dr. Rao failed to exhaust his administrative
remedies. The allegations involve the same conduct – discrimination and retaliation predicated
on the University’s investigation into Dr. Rao’s purported research misconduct. They also
30
involve the same individuals. Although Dr. Dutta made the binding decision to reverse the
panel’s determination, she relied on the recommendation of Dr. Grabiner, who had been involved
in the research integrity investigation since its inception. (See, e.g., Def. SOF ¶ 23, 61; Pl. SOAF
¶¶ 4, 14.) When considering these facts, and considering that Dr. Rao’s EEOC complaint alleged
that the discriminatory acts were ongoing due to the continuing nature of the research integrity
investigation, the Court finds that Rao exhausted his administrative remedies. See Lavalais v.
Vill. of Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013) (allegations of police department’s
refusal to transfer aggrieved officer were reasonably related to the EEOC complaint based on
poor assignment, even though transfer request ostensibly came after the EEOC complaint
because it “it could grow or reasonably be expected to grow out of the allegations in the EEOC
charge” and involved the same individuals and conduct).
II.
National Origin Discrimination Claims
Rao alleges that the University discriminated against him on the basis of his national
origin in violation of Title VII, the ICRA, and the equal protection clause10 when he was
constructively discharged11 and when University officials reversed the findings of the research
integrity panel and purportedly imposed sanctions against Dr. Rao. (Dkt. 283 ¶¶ 56, 73.)
Defendants argue that they should be granted summary judgment as to Dr. Rao’s claims of
discrimination based on his national origin because based on a review of the evidence as a
whole, Rao cannot show that he was meeting the legitimate job expectations, there is no
evidence direct or otherwise of discrimination.
Specifically, Defendants argue that Rao’s
performance was not meeting the University’s legitimate expectations because his lab had
10
Dr. Rao’s equal protection claim is analyzed under the same standards as his Title VII claims. Hildebrandt v. Ill.
Dep't of Nat. Res., 347 F.3d 1014, 1036 (7th Cir. 2003). Cole v. Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 899 (7th
Cir. 2016), cert. denied, No. 16-1032, 2017 WL 1366744 (U.S. Apr. 17, 2017).
11
Dr. Rao limits his ICRA claim to the events surrounding his departure from the University in April 2013.
31
committed intentional errors in their professional publications and he attempted to cover up those
errors and that he was demanding and receiving money from individuals who worked under him.
Further, Defendants claim that he cannot show that he suffered an adverse employment action
since he chose to resign his position with open eyes while represented by counsel and was given
an opportunity to assuage the potential damage of a public display of his misconduct by
resigning which he chose to do. Finally Defendants allege that he has failed to show that
similarly situated employees not in his protected class were treated more favorably. (Dkt. 220 at
5.) Defendants do not dispute the fact that Dr. Rao is a member of a protected class. (Dkt. 220 at
6.)
Defendants argue instead that even if Dr. Rao can make out a prima facie case of
discrimination, the University had legitimate reasons for taking the actions that it did, and Dr.
Rao cannot show those reasons were mere pretext. Simply put, according to Defendants, based
on a holistic view of the evidence, a reasonable jury could not infer that Dr. Rao was
discriminated against based on his national origin.
“[I]n enacting Title VII of the Civil Rights Act of 1964, Congress intended to prohibit all
practices in whatever form which create inequality in employment opportunity due to
discrimination on the basis of race, religion, sex, or national origin, and ordained that its policy
of outlawing such discrimination should have the “highest priority.” Franks v. Bowman Transp.
Co., 424 U.S. 747, 763 (1976) (internal citation omitted) (collecting cases). Specifically, Title
VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color, religion, sex, or
national origin.” 42 U.S.C.A. § 2000e-2. When plaintiffs allege that they have been treated
differently because of their race, as plaintiff has here, he must prove the “employer had a
32
discriminatory motive for taking a job-related action.” Ernst v. City of Chicago, 837 F.3d 788,
794 (7th Cir. 2016).
Until very recently, a district court would separate evidence into two categories when
examining discrimination claims. First, a district court would determine whether the plaintiff had
satisfied the so-called “direct method” of proof; that is, it would look to see whether the plaintiff
had “present[ed] sufficient evidence, either direct or circumstantial, that the employer's
discriminatory animus motivated an adverse employment action.” Harper v. Fulton Cnty., 748
F.3d 761, 765 (7th Cir. 2014) (quoting Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012))
(internal quotation marks omitted). Second, a district court would determine whether plaintiff
had satisfied the “indirect method” of proof as described in McDonnell Douglas Corp. Under the
indirect method of proof, a plaintiff could shift the burden of proof to the defendant after making
a prima facie case of employment discrimination, showing: that “(1) she is a member of a
protected class; (2) she met her employer's legitimate job expectations; (3) she suffered an
adverse employment action; and (4) similarly situated employees outside of the protected class
received more favorable treatment.” Kuttner v. Zaruba, 819 F.3d 970, 976 (7th Cir. 2016)
(internal quotations and citations omitted). If the plaintiff made out a prima facie case, the
burden would shift to the defendant to give a non-discriminatory reason for treating the plaintiff
the way it did, and if the defendant met that burden, the burden would shift back to the plaintiff
to show that the defendant's explanation was just a pretext for discrimination. McDonnell
Douglas, 411 U.S. at 802, 804. Pretext means “‘a dishonest explanation, a lie rather than an
oddity or an error.’” Sweatt v. Union Pac. R. Co., 796 F.3d 701, 709 (7th Cir. 2015) (quoting
Peele v. Country Mut. Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002)).
33
The distinction between “direct” and “indirect” evidence in employment discrimination
claims has been cast aside and the Seventh Circuit overruled numerous decisions “to the extent
that these opinions insist on the use of the direct-and-indirect framework.” Ortiz v. Werner
Enter., 834 F.3d 760, 765-66 (7th Cir. 2016). The critical question is not the type of evidence
presented but rather from examining the evidence as a whole, “whether a reasonable jury could
infer the existence of discrimination or retaliation.” Malekpour v. Chao, No. 16-3440, 2017 WL
1166872, at *3 (7th Cir. Mar. 29, 2017) (quoting Cole, 838 F.3d at 899–901.
Although Ortiz did not concern the McDonnell Douglas burden-shifting framework
applied in many employment discrimination suits, recent Seventh Circuit opinions since Ortiz
have reiterated that the McDonnell Douglas framework “refers to a common, but not exclusive,
method of establishing a triable issue of intentional discrimination.” Volling v. Kurtz Paramedic
Servs., Inc., 840 F.3d 378, 383 (7th Cir. 2016) (emphasis added) (internal quotation marks
omitted). Indeed, even after Ortiz, the Seventh Circuit has recognized that “McDonnell Douglas
is a means of organizing, presenting, and assessing circumstantial evidence in frequently
recurring factual patterns found in discrimination cases.” David v. Bd. of Trs. of Cmty. Coll.
Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017).
Because, Ortiz did not undermine the McDonnell Douglas framework and the parties
presented their evidence and arguments under that rubric, the Court will first examine the
evidence as a whole through that lens. For the reasons discussed below, Dr. Rao has not
presented sufficient evidence, direct, indirect, circumstantial, or otherwise to allow a reasonable
jury to conclude that Dr. Rao was discriminated against based on his national origin.
34
A. Adverse Employment Action
The Court starts its analysis by defining the scope of potential adverse employment
actions suffered by Dr. Rao. “An adverse action for a discrimination claim must materially alter
the terms or conditions of employment to be actionable.” Malekpour, 2017 WL 1166872, at *2
(internal quotation and citations omitted).
Dr. Rao argues that he suffered several different adverse employment actions: (1) his
alleged constructive discharge; (2) the investigations into his misconduct; and (3) the
University’s decision to hold him responsible for the lab’s research errors and accompanying
sanctions. (Dkt. 260 at 3-4.)
Defendants argue that Rao’s departure from University employment did not constitute an
adverse employment action because he voluntarily resigned his positions after consulting with
counsel and family members and was given more than three days to make his decision. (Dkt.
220 at 8.) For reasons discussed extensively in the Court’s analysis of Rao’s due process claim,
there are several issues of fact that could lead a reasonable jury to conclude that he was
constructively discharged or coerced into resigning. Rao fails to substantively address how the
investigation itself or the undefined “events leading up to discharge” could be considered
adverse employment actions, nor is there evidence to support that conclusion. (Dkt. 260 at 2-3.)
Threats of adverse action or “dark hints of future adverse employment action” are not adverse
employment actions when evaluating Title VII claims. Dunn v. Wash. Cty Hosp., 429 F.3d 689,
692–93 (7th Cir. 2005); see also Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690,
697 (7th Cir. 2017) (“unfulfilled threats of discipline” are not actionable). As to the last alleged
adverse action, the University does not contest that the determination to hold Rao responsible for
35
his lab’s errors as part of the research integrity decision was an adverse employment action. (See
Dkt. 274.)
B. Dr. Rao’s Performance
Defendants argue that Rao cannot show that at the time of his resignation he was
performing his job to the University’s legitimate expectations. In support, they point to the
results of Kaye Scholer’s investigation, which concluded that there was evidence to support
allegations that Rao had directed staff to delete documents summarizing research errors and that
Rao had accepted cash payments from at least one employee, ostensibly to help keep the extent
of his gambling habit concealed from his wife. (Dkt. 220 at 6-7.) As explored more fully below,
Rao attacks the conclusions of Kaye Scholer’s investigation and their methodology, but cannot
and does not dispute that he accepted cash payments from Dr. Gondi. (Def. SOF ¶ 40-41, 46;
Def. SOAF 6Pl. SOF ¶ 16; Dkt. 260 at 9; Dkt. 227-8 at 180:24-181:2.) Instead, he attacks
Gondi’s financial situation, purported instances where Gondi withdrew large amounts of cash
and did not provide them to Rao, questions Gondi’s motivation in making allegations against
him, downplays his own gambling problem, and attempts to classify the payments as loans to
Gondi money, all of this in spite of his lack of denial that he ever received cash from employees.
(Dkt. 260 at 9.) It is undisputed that Kaye Scholer concluded that Rao directed employees to
delete summary documents examining the amount of errors in papers and conceal the amount of
publication errors. (Def. SOF ¶ 24, Dkt 222-9 at 47:17-48:4.) This conclusion was corroborated
in part by a forensic examination of electronic material and audio recordings of Rao addressing
his lab employees, that even Rao conceded are “potentially incriminating.” (Def. SOF ¶¶ 31-32,
42; Dkt. 260 at 15.) Although Rao challenges the motivation of Gondi and the procedures
employed by Kaye Scholer, what he fails to do is present any evidence that would allow a
36
reasonable juror to conclude that professional errors in publications, pressuring employees for
cash, or deleting evidence are actions demonstrating that one is fulfilling the legitimate job
expectations of a Professor and Doctor in the University. Instead, there is ample evidence in the
form of electronic recordings (evidencing his direction to employees regarding the deletion of
evidence), forensic computer analysis (evidencing the deletion of files that should have been
saved to support the research in the lab), and video recordings (evidencing the payment of cash
from an underling to Rao when Rao had previously denied receiving cash from any employees).
These are not the legitimate expectations that a University holds for an employee in higher
education who is receiving one of the top salaries in the University for his alleged professional
work. At this level of education, each writing and action of a professor bearing the University’s
name is expected to be of the highest caliber and of the utmost integrity or the very nature of the
University’s work is undermined. In keeping with this risk, numerous processes were in place at
the University to review the professional integrity of all employees at the highest levels. Based
upon the University’s own investigation, Rao was not fulfilling those expectations.
Nor can Dr. Rao establish that at the time Dr. Dutta reversed the findings of the research
Investigation Panel and recommended that Dr. Rao be held responsible, he was performing to
University’s legitimate expectations. By that time, the Investigation Panel found that many of
the papers under review suffered significant departures from accepted practice of the relevant
professional community. (Def. SOF ¶ 71.) The Panel also noted that “figures were duplicated,
several with manipulation, and one figure plagiarized, in what was perceived by the Investigation
Panel members as attempts to render the figures unrecognizable, leads to the conclusion that the
practice was prevalent in the lab group and may have existed as an organized and encouraged
37
behavior.” (Id.) Prior to that point, Dr. Rao had accepted responsibility for the research coming
from the lab and even averred that he reviewed the figures very carefully. (Def. SOF ¶ 17, 73.)
Instead of pointing to evidence that he performed to legitimate expectations, without
evidentiary support, Rao instead argues that his lab did not commit an unprecedented amount of
errors and argues that all professors, including Drs. Azar and Garcia had similar types of errors.
(Dkt. 220 at 4.) This argument, however, misses the point, as neither of those professors was
alleged to be involved with the significant number of errors as Dr. Rao and neither had findings
of serious misconduct and plagiarism, as Rao did. Nor was there evidence that either attempted
to delete evidence that might show that the numbers were being intentionally altered. In fact,
both were found to be inconsequential in nature as opposed to the intentional nature of Rao’s
findings. The fact that Dr. Rao corrected so many papers following the investigation supports
the notion that the findings against him were justified and the scope of the investigation was
appropriate. (Def. SOF ¶ 65.)
C. Similarly Situated
Defendants argue that Rao has not and cannot identify any similarly situated non-Indian
employee who was treated differently under similar circumstances. (Dkt. 220 at 11.)
Determining whether employees are similarly situated is a “flexible, common-sense, and factual”
inquiry. Coleman, 667 F.3d 835 at 841. “Relevant factors include ‘whether the employees (i)
held the same job description, (ii) were subject to the same standards, (iii) were subordinate to
the same supervisor, and (iv) had comparable experience, education, and other qualifications.’”
David, 846 F.3d at 225–26 (quoting Warren v. Solo Cup Co., 516 F.3d 627, 630 (7th Cir. 2008)).
When examining the record in the light most favorable to Rao, the record does not
contain evidence of another similarly situated employee, Indian or otherwise, who was the
38
subject of similar ethics investigations and was treated differently. In unrelated sections of his
response, Rao references his own participation in the termination of Dr. Weber but fails to
present any evidence in how the two doctors were similarly situated.
As to the research integrity investigation, Rao avers that Dr. Azar and Garcia were
treated differently, yet fails to show that the decision-makers in his investigation – Dr. Dutta,
who was also Indian, or the University President, played any role in the investigations of Drs.
Garcia and Azar. See Little v. Ill. Dep't of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004) (“A
similarly-situated employee must have been disciplined, or not, by the same decisionmaker who
imposed an adverse employment action on the plaintiff.” (citing Patton v. Indianapolis Pub.
Sch. Bd., 276 F.3d 334, 338 (7th Cir.2002); Radue v. Kimberly–Clark Corp., 219 F.3d 612, 617–
18 (7th Cir.2000))); see also Coleman, 667 F.3d at 847 (“The inference of discrimination is
weaker when there are different decision-makers, since they ‘may rely on different factors when
deciding whether, and how severely, to discipline an employee.’”) (quoting Ellis v. United
Parcel Serv., 523 F.3d 823, 826 (7th Cir.2008)).
Dr. Rao also fails to adequately show that the conduct of Drs. Azar and Garcia was
similar to his own. Dr. Rao was accused of errors in close to 20 papers including plagiarism and
manipulation, while Drs. Garcia and Azar were under review for a narrow set of alleged errors in
a small amount of papers all of which were determined to be minor oversights not intentional
manipulations. (Def. SOF ¶ 64.) Although Rao purports to attack the procedures used in the
different inquiries, he really challenges the results. Dr. Rao’s recognition that many of the errors
identified by the research integrity investigation needed to be corrected belies the conclusion that
their findings were substantiated. (Def. SOF ¶ 65.)
39
D. Pretext and Evidence of Discrimination
Rao has also failed to identify a disputed issue of material fact as to the legitimacy of the
University’s proffered reason for his purported constructive discharge or otherwise raise an issue
of fact that could lead a reasonable jury to conclude that his alleged termination or the research
integrity decision resulted from discriminatory animus. Dr. Rao does not present any evidence
of overt discrimination based on his national origin. Instead, Dr. Rao spends much of his
response brief attacking the methodology and conclusions of Kaye Scholer’s investigation,
arguing that it was a sham and came to the wrong conclusion. Dr. Rao asserts, often without
evidentiary support, that Kaye Scholer allegedly: (1) bullied lab employees; (2) falsely
represented the amount of information they had in attempts to get information from lab
employees; (3) used leading questions in their interviews with lab employees; (4) disclosed
allegations about him to lab employees; (5) reported his alleged misconduct to the USAO before
the investigation concluded and without telling him; (6) did not ask him why he purportedly
destroyed files; (7) ignored exculpatory evidence;12 (8) failed to subpoena or ask for his bank
records; and (9) ignored Gondi’s poor performance as a motivation for Gondi to have lied to
them. (Dkt. 260 at 14. (Dkt. 260 at 13-14.)13
These issues do not raise a question of fact as to whether Kaye Scholer’s investigation
was a sham. First, as Rao himself concedes, if anything, the investigation was too thorough as
he was “interviewed multiple times and his direct reports were interviewed sometimes two to
three times.” (Dkt. 260 at 13.) In addition to the interviews, the investigation included a
forensic analysis of electronic material and a review of grant and audit information. (Def. SOF ¶¶
12
This assertion is clearly belied by the record as Kaye Scholer’s investigation evaluated the list of 12 allegations
lodged against Dr. Rao and concluded that 10 of those allegations were not supported by sufficient evidence. (Def.
SOF ¶ 27; Pl. SOF ¶ 13.)
13
“[I]n many cases, analysis of the ‘legitimate expectations’ prong of the prima facie case is very much akin to, or
merges with, the question of pretext.” Vaughn v. Vilsack, 715 F.3d 1001, 1007 (7th Cir. 2013).
40
24, 31-32.)
See, e.g., Luster v. Ill. Dep't of Corr., 652 F.3d 726, 729, 733 (7th Cir. 2011)
(concluding that the employer conducted a reasonable investigation of a co-worker's accusation
of sexual harassment against plaintiff by interviewing plaintiff, the complaining co-worker and
two witnesses). Furthermore, Rao fails to explain how any of Kaye Scholer’s actions departed
from standard investigative techniques, let alone could lead to an inference of national origin
discrimination, especially when the investigation began before Kaye Scholer’s involvement. In
fact, undisputed testimony supports the propriety of Sussman’s contacts with the USAO due to
the University’s obligation to report any allegations of potential misconduct involving federal
grants to the USAO, which asked that they not discuss the investigation with him. (Dkt. 259 at
218:3-22.)
Rao spends much of his brief attempting to create a factual issue as to the conclusions of
Kaye Scholer’s investigation, yet he does not dispute that Kaye Scholer had reasons to conclude
that he accepted cash payments from at least one lab employee, Dr. Gondi. (Def. SOF ¶¶ 28-29.)
Evidence of that conclusion is supported by (1) a video recording of him refusing to accept a
check from Gondi and instead accepting cash; (2) certified bank records reflecting withdrawals
from Gondi’s accounts; (3) Rao’s last minute concession that he “loaned” Gondi money, after
denying during earlier interviews that he had ever loaned any money to anyone who worked for
him, allegedly to cover up the true reason for accepting cash from him. (Id.) Furthermore, Rao
does not directly address the fact that there is an audio recording of him directing his employees
to conceal the extent of the lab’s errors and directing others to delete evidence of the errors. (Def.
SOF ¶ 42.) In fact, Rao concedes that the audio recordings are “potentially incriminating” and
does not refute the accuracy of the recordings. (Dkt. 260 at 15.) Instead, he attempts to cast
aspersions on Gondi again because he had a hand in “editing” the transcripts where his voice is
41
heard on the recordings – a task done to verify what was being said by the actual speaker. The
audio also contains Rao himself speaking of pervasive errors in the lab but he only conceded that
three papers contained errors in his interviews with Kaye Scholer. (Def. SOF ¶ 42.) Instead, he
points to inadmissible evidence purporting to show that he kept a copy of the summary,
apparently consistent with the recording indicating that he would keep the summary. This
assertion does not undercut Kaye Scholer’s conclusion that Rao directed his employees to
conceal and delete the summaries. (Def. SOF ¶ 24, Dkt 222-9 at 47:17-48:4.) Similarly, Rao
cannot undermine the results of the research integrity investigation, which found that due to his
reckless conduct, he was responsible for the troubling pattern of errors in papers published by his
lab, as he moved to correct more than ten of those papers. (Def. SOF ¶ 73.) The reasonable and
supported conclusions reached by Kaye Scholer preclude Rao from demonstrating causation
between the investigation and his alleged discharge. Taleyarkhan v. Trustees of Purdue Univ.,
607 F. App'x 548, 551 (7th Cir. 2015) (finding that summary judgment in favor of university in
discrimination suit brought by professor was appropriate when investigation independently
affirmed allegations because plaintiff could not show causation).
Instead of disputing these facts, as the Court gave him two opportunities to do by
permitting a second filing under Local Rule 56.1, Rao cites to what he considers exculpatory
information that he believes was ignored by Kaye Scholer which s could have led Kaye Scholer
to a different conclusion. Even assuming for the sake of argument that the investigation had
missteps or that they could have come to a different conclusion, “[w]e have repeatedly
emphasized that when assessing a plaintiff's claim that an employer's explanation is pretextual,
we do not second-guess an employer's facially legitimate business decisions. An employer's
reasons for firing an employee can be foolish or trivial or even baseless, as long as they are
42
honestly believed.” Lord v. High Voltage Software, Inc., 839 F.3d 556, 564 (7th Cir. 2016), cert.
denied, 137 S. Ct. 1115, 197 L. Ed. 2d 185 (2017) (internal citations and quotations omitted).
Rao has done nothing to undermine the University’s stated conclusions, instead he “merely
quibbles with the wisdom of his employer’s decision.” Lord, 839 F.3d at 565. Pretext involves
more than just faulty reasoning or mistaken judgment on the part of the employer; it is a “lie,
specifically a phony reason for some action.” Argyropoulos v. City of Alton, 539 F.3d 724, 736
(7th Cir. 2008) (quoting Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 737 (7th Cir.2006)
(citation omitted)). Rao has not raised an issue of fact as to whether the University’s proffered
reason for its actions was pretextual.
Rao also argues that the University’s failure to follow its own internal procedures
evidences its discriminatory motivation. (Dkt. 260 at 17.) In support, Rao points to several
alleged departures from procedure in his investigation, many of which are immaterial, not
supported by the cited evidence, admissible evidence, or are based on facts that were disregarded
due to violations of Local Rule 56.1 These include: (1) Dr. Rusch’s formation of a “Dean’s
Committee” instead of her making a determination that the allegations constituted research
misconduct (lacks foundation); (2) Dr. Rusch appointing Dr. Alarcon to the Dean’s Committee
“even though Dr. Rusch was aware that Dr. de Alarcon’s supervised Peggy Mankin, who was the
person who brought Gondi’s anonymous allegations to Dr. Rusch’s attention, and that Mankin
funneled the allegations to Dr. Rusch through Dr. de Alarcon” (not supported by cited evidence); (3)
the alleged distribution of the Dean’s Committee’s preliminary report) (this fact was disregarded
as it was the fifth assertion included in the statement); (4) Dr. Rusch’s alleged failure to review the
allegations (not supported by cited evidence); (5) Dr. Grabiner’s establishing a three-member
Inquiry Panel instead of a two-member Inquiry Panel (immaterial); (6) the fact that the Inquiry
Panel expanded the scope of its investigation to thirteen additional papers, where it also found
43
errors (immaterial); (7) Dr. Grabiner provided inculpatory information to the Inquiry Panel but
did not provide them with certain exculpatory information (not supported by cited evidence); (8)
Rao was not interviewed as part of the research integrity investigation (immaterial). (Dkt. 260 at
18-22.) Without citation or factual support, Rao also attacks the procedures employed in the
investigation stage of the research integrity investigation, despite the fact that that phase of the
investigation resulted in recognition that there was research misconduct in the lab but a
recommendation that Rao not be held personally liable for the misconduct. Without explanation,
Rao also alleges that discrimination can be inferred from Dr. Rusch’s failure to prevent the
March 21, 2013 meeting and then in the next sentence criticizes her for not attending the
meeting. (Dkt. 260 at 23.)
While straying from employment policies can potentially indicate discriminatory intent,
the University’s alleged departures cannot lead to such an inference here because “we do not
require that an employer rigidly adhere to procedural guidelines in order to avoid an inference of
retaliation. Instead, we look for pretext in the form of ‘a dishonest explanation, a lie rather than
an oddity or an error.’ Moreover, when independent surrounding circumstances indicate that the
employee's performance was seriously deficient and worthy of disciplinary action, a procedural
abnormality will not suffice to establish a [discriminatory or] retaliatory motive.” Kidwell v.
Eisenhauer, 679 F.3d 957, 969 (7th Cir. 2012). As discussed extensively above, Rao has failed
to present sufficient evidence to undermine the proffered reasons for his termination and the
determination to hold him responsible for his lab’s errors. Dr. Rao “cannot demonstrate a
[discriminatory or] retaliatory motive based on a technical violation of policy when the
circumstances reveal a pattern of deficient actions on his part.” Kidwell, 679 F.3d at 971; Guinto
v. Execlon Generation Co., LLC, 341 Fed. Appx. 240, 246-47 (7th Cir. 2009) (“it is immaterial
44
whether [the employer] failed to follow internal protocols or rejected him based on subjective
criteria . . . [b]ecause the decision-makers' stated reasons have gone unrebutted”).
E. Illinois Civil Rights Act of 2003 Claim
Rao’s ICRA claim fails for the same reasons his Title VII discrimination claim fails.
Specifically, the statute allows courts to declare that “any unit of state, county or local
government has adopted ‘methods of administration that have the effect of subjecting individuals
to discrimination because of their race, color, national origin, or gender.’” Cent. Austin
Neighborhood Ass’n v. City of Chic., 2013 IL App (1st) 123041, ¶ 20. Section 5 of the ICRA
was not intended to create new rights but merely created a new venue—state court—for
discrimination claims under federal law. Dunnet Bay Const. Co. v. Borggren, 799 F.3d 676, 697
(7th Cir. 2015), cert. denied sub nom. Dunnet Bay Const. Co. v. Blankenhorn, 137 S. Ct. 31, 196
L. Ed. 2d 25 (2016) (citing Ill. Native Am. Bar Ass'n v. Univ. of Ill., 368 Ill.App.3d 321, 305
Ill.Dec. 655, 856 N.E.2d 460, 467 (2006)). Other courts within this district have determined that
the ICRA “was expressly intended to provide a state law remedy that was identical to the federal
disparate impact canon.”
Jackson v. Cerpa, 696 F. Supp. 2d 962, 964 (N.D. Ill. 2010).
Accordingly, when interpreting the ICRA, courts “look to cases concerning alleged violations of
federal civil rights statutes to guide our interpretation.” Weiler v. Vill. of Oak Lawn, 86 F. Supp.
3d 874, 889 (N.D. Ill. 2015) (collecting cases).
III.
Retaliation
A.
Retaliation Under Title VII
In addition to banning discrimination based on national origin, Title VII also forbids
employers from discriminating against employees who “opposed any practice” prohibited by
Title VII or who “made a charge, testified, assisted, or participated in any manner in an
45
investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e–3(a). To survive the
University’s Summary Judgment motion on his Title VII retaliation claims, Rao “must produce
enough evidence for a reasonable jury to conclude that (1) []he engaged in a statutorily protected
activity; (2) the Board took a materially adverse action against h[im]; and (3) there existed a butfor causal connection between the two.” Burton, 851 F.3d at 695. “[A]n adverse action for
retaliation purposes must be serious enough to dissuade a reasonable employee from engaging in
protected activity.” Malekpour, 2017 WL 1166872, at *2. The dispositive question is whether a
reasonable jury could find a causal link between the protected activities and the adverse actions
and because the University has presented non-retaliatory explanations for its actions, “the true
question is whether the proffered reasons were pretext for retaliation.” Burton, 851 F.3d at 697.
“Without direct evidence of causation, [Rao] must rely on circumstantial evidence like
suspicious timing, ambiguous statements, treatment of similarly-situated employees, and any
other relevant information that could permit an inference of retaliation.” Id.
In his complaint, Rao alleges that the University retaliated against him for his fall 2012
complaint regarding the investigation into his alleged misdeeds. (Dkt. 283 ¶ 60.) He alleges that
the retaliatory acts were his constructive discharge and finding that he was responsible for
research misconduct at the end of the research integrity investigation. (Dkt. 85 ¶¶ 60-61.) His
response to Summary Judgment, however, articulates a different theory. Rao now asserts that he
engaged in protected activity on September 19, 2012, when he had a conversation with Dr.
Rusch where he raised concerns about the investigations. (Pl. SOAF ¶ 38.) According to Rao, in
that conversation, he purportedly complained that the investigations into his alleged misconduct
were discriminatory, especially when compared to how the University handled the inquiry of Dr.
Geiss, a University employee, who falsely spread the rumor that Rao had cancer in 2008. (Dkt.
46
260 at 25; Pl. SOAF 38.) In the 2008 inquiry, the matter was not referred to the University’s
Ethics Office but instead Rusch mediated the situation and asked Rao to accept an apology from
Geiss. McNeely investigated Rao’s complaint of discrimination and concluded that Rao was
supportive of the action taken with Geiss back in 2008 and was even involved in the plan on
how to deal with Geiss’s false health statements made by Geiss against him. (Def. SOF ¶ 38.)
In November 2012, Rao filed a formal complaint with the University. Rao points to the hiring of
outside counsel and the alleged escalation of the investigation following his complaint as
retaliatory acts for filing the complaint. Dr. Rao also points to the “suspicious timing” of the
decisions to escalate both investigations within days of Dr. Rao’s initial as evidence of a causal
link between the purported protected activity and the alleged retaliatory acts. (Dkt. 260 at 27.)
By pointing to his September 2012 complaint, Dr. Rao attempts to insinuate that the
investigations into his misconduct were instigated or “escalated” by his complaints of
discrimination. Rao relies on the fact that the scope of the research integrity investigation was
purportedly expanded by Grabiner three days after he sent an email to Rusch claiming that the
investigation was discriminatory and that around the same time, the scope of the research
integrity investigation was expanded from a review of five to eighteen papers. Putting aside
whether the escalation of an already existing investigation can constitute retaliation when the
investigation into misconduct predated the alleged retaliation, Rao misstates the evidence
presented to the Court. First, the investigations into Rao began in July 2012, before he ever
made any allegations of discriminatory treatment.
(Def. SOF ¶ 16.)
The fact that the
investigation increased in magnitude does not show suspicious timing when the increase in
magnitude was based on the evidence that was being uncovered requiring a deeper look into his
alleged misconduct at the time.
Second, even if the Court were to accept that the hiring of
47
counsel and expansion of the research integrity investigation were suspiciously timed,
“’suspicious timing alone is rarely enough to survive summary judgment.’” Nichols, 755 F.3d at
605 (quoting Morgan v. SVT, LLC, 724 F.3d 990, 998 (7th Cir. 2013). Indeed, Rao has failed to
identify other evidence that could lead to the conclusion that he was retaliated against, especially
in light of two independent and corroborated investigations that found he had committed
misconduct. Third, Rao fails to point to any evidence, nor has any been presented to the Court,
to support the inference that McNeely even knew about Rao’s discrimination allegations at the
time she began the discussions to engage outside counsel. In fact, uncontroverted testimony
indicates that McNeely engaged outside counsel due to the seriousness of the allegations against
Rao and her concerns about the amount of time such an investigation would take her. (Def. SOF
¶ 24, Dkt 222-9 at 47:17-48:4.) Rao also fails to link the expansion of the research integrity
investigation, which was broadened by Dr. Rhonda Kineman, one of the members of the Inquiry
Team, to his complaints about Dr. Rusch. (Pl. SOAF ¶ 10.)14
Furthermore, to the extent that Rao alleges that he was retaliated against for reporting
that Drs. Azar, Garcia, and Prabhakar committed research misconduct, his argument fails
because those allegations cannot be considered protected conduct. To be protected under Title
VII, his complaint must have indicated “the discrimination occurred because of sex, race,
national origin, or some other protected class . . . Merely complaining in general terms of
discrimination or harassment, without indicating a connection to a protected class or providing
facts sufficient to create that inference, is insufficient.” Cole, 838 F.3d at 901 (quoting Orton–
14
Dr. Rao also alleges that the investigation was expanded to examine 13 additional papers based on a document
titled “supplement to the Peoria Special Committee Report,” which he calls a falsified report. There is no evidence
to support the conclusion that this document is falsified and as Defendants point out in their reply, the document was
considered by the Inquiry Team which noted that the Dean’s Committee or the Inquiry Team did not issue any
allegations based on the document but left open the possibility of the Investigation Team analyzing the document.
(Dkt. 274 at 13.)
48
Bell v. Indiana, 759 F.3d 768, 776 n.6 (7th Cir. 2014)). There is no evidence that his allegations
against Drs. Garcia, Azar, or Prabhakar, a fellow Indian, were in any way tied to his own
national origin discrimination claims. (Def. SOF ¶ 80.) In fact, his allegations appear to be his
quid pro quo against those doctors because Drs. Azar and Garcia would potentially be reviewing
allegations of his misconduct. Since there is simply no evidence in the record to link the
complaint against them to a retaliatory act on the part of the Defendants, these allegations cannot
serve as the basis for his retaliation claims and the only potential protected activity are Rao’s
complaints from the fall of 2012 that the investigation was discriminatory.
Rao has also failed to create an issue of fact as to whether the hiring of outside counsel
and continuation of the investigations into his misconduct was an adverse employment action.
That is because he has failed to argue that these actions were “serious enough to dissuade a
reasonable employee from engaging in protected activity.” Malekpour, 2017 WL 1166872, at
*2. See Dunn, 429 F.3d at 692–93 (“dark hints of future adverse employment action” were not
adverse employment actions for Title VII retaliation purposes). Once again, Rao must overcome
the obstacle that the investigation had already begun into his alleged misconduct before he made
the complaints, and beyond that, he must be able to show that the University’s hiring of outside
counsel served as a retaliatory adverse employment action. But a University, like any employer,
may seek outside counsel at any time to handle matters that it deems to be sensitive and timeconsuming without running the risk of that representation running afoul of the civil rights laws.
Suggesting otherwise would most certainly be against public policy which permits individuals
and entities to hire attorneys to handle both complex and simple matters as a matter of discretion.
Rao also cannot show that the University’s decision to hold him responsible for the lab’s
publication errors was a retaliatory act. It is undisputed that in 2014, Dr. Dutta made the
49
recommendation to hold Rao responsible for the research misconduct of the lab, a decision that
was affirmed by the University’s President. (Def. SOF ¶ 72.) Rao has not pointed to any
evidence that Dutta, a fellow Indian, or the President, were aware of Rao’s allegations against
Drs. Azar, Garcia, and Prabhakar. Even if they were aware, however, it is uncontroverted that
the investigation began before Rao complained about the others who had alleged errors in their
professional work, there was an independent investigation into Rao’s work and the others’ work,
there were recommendations made to Dutta and those recommendations included very dissimilar
findings—the others were deemed to be inconsequential, non-intentional and were rectified
immediately; whereas, Rao’s were deemed to be significant, intentional, and obstructive. The
recommendation to Dutta was based on uncontroverted and substantial evidence including video
and audio recordings and forensic computer evidence. To suggest that the “real reason” Dutta
was holding Rao responsible for the misconduct was because he complained of other
researchers’ typos long after his investigation was underway defies credibility and no reasonable
juror could infer such. Yet, even if the Court were to assume Dr. Azar and Dr. Rusch had
animus against Dr. Rao for his complaints against them he has not demonstrated that the “animus
had [any] influence on the ultimate adverse action.” Poullard v. McDonald, 829 F.3d 844, 856–
57 (7th Cir. 2016) (citing Woods v. City of Berwyn, 803 F.3d 865, 870 (7th Cir. 2015)). “If the
ultimate decision-maker does determine whether the adverse action is entirely justified apart
from the supervisor's recommendation, then the subordinate's purported bias might not subject
the employer to liability. This is consistent with our previous holdings that ‘the chain of
causation can be broken if the unbiased decision-maker conducts a meaningful and independent
investigation of the information being supplied by the biased employee.’” Woods v. City of
Berwyn, 803 F.3d 865, 870 (7th Cir. 2015) (quoting Schandelmeier–Bartels v. Chi. Park Dist.,
50
634 F.3d 372, 383 (7th Cir.2011)); Nichols, 755 F.3d at 604 (sworn statements that showed that
plaintiff’s termination “had nothing to do” with statements from party with animus against
plaintiff meant that the animus was “not a proximate cause” of the termination). As discussed
extensively in relation to his national origin discrimination claims, Rao cannot show retaliation
because his alleged constructive discharge and the research integrity decision were conducted by
different decision makers for legitimate reasons that Rao has failed to controvert. As discussed
above, Kaye Scholer came to the non-pretextual and independently corroborated conclusion that
Rao had engaged in misconduct, as did Dr. Dutta, when finding Rao culpable for his lab’s errors.
Indeed, following the research integrity investigation, Rao corrected a number of papers that
contained errors, including papers contained in the expanded list, which he claims was prompted
by retaliatory animus. (Def. SOF ¶ 65.) This fact completely undercuts his argument that the
research integrity investigation was a sham or that it was motivated by retaliatory animus, as his
corrective action in itself indicates his belief that the allegations were substantiated. “When
confronted with circumstantial evidence of a retaliatory motive, the employer may show that the
employee would have been fired even absent his complaints about harassment.” Lord, 839 F.3d
at 564; see also Burton, 851 F.3d at 698 (affirming summary judgment for university on
retaliation claim where university official “had a factual basis for each of the allegations she
leveled against [plaintiff] . . . and [plaintiff] failed to provide evidence that the allegations were
pretextual). Additionally, the significant time gap between the alleged protected activity in the
fall of 2012 and the alleged adverse actions in March 2013 and the research integrity decision in
2014, “substantially” weakens his retaliation claim. See Burton, 851 F.3d at 698.
Lastly, throughout his response, Rao also undercuts his retaliation claim by repeatedly
asserting that Gondi, a fellow Indian, and member of Rao’s lab, caused the investigation into
51
Rao’s lab that led to the research integrity investigation and his departure from the University
rather than the retaliatory action of the Defendants for his alleged complaint about the
investigation. (See, e.g., Dkt. 260 at 8) (“not a single one of Dr. Gondi’s colleagues corroborated
his claims, that 11 of the 12 other allegations by Dr. Gondi were known by the University and
Kaye Scholer to be false. . . Dr. Gondi’s claims as to the payments made were inconsistent”); see
id. at 14 (“the meritless allegations that were being made by Gondi”). But word of Rao’s
complaints about the investigation did not trigger the investigation itself and Gondi’s allegations
were corroborated by the audio and video recordings. For these reasons, the University is entitled
to summary judgment on Rao’s Title VII retaliation claim.
B.
Dr. Rao’s Retaliation Claim Against Dr. Rusch Pursuant to the State
Officials and Employee Ethics Act
Rao also claims that Dr. Rusch improperly retaliated against him in violation of the
Illinois State Officials and Employees Ethics Act (“SOEEA”), which prohibits retaliation against
state employees who disclose illegal activity where the protected activity was a “contributing
factor” in the retaliatory actions. See 5 Ill. Comp. Stat. Ann. 430/15-10; Carmody v. Bd. of Trs.
of Univ. of Ill., 747 F.3d 470, 480 (7th Cir. 2014).
In his complaint, Rao alleges that he was retaliated against when Rusch “escalated” the
investigations into his misconduct after he filed his November 2012 complaint with the
University Ethics Officer regarding the investigation into his misconduct and also when he
reported that three professors had errors in their papers in November 2012. (Dkt. 283 ¶¶ 63-67.)
His SOEEA claim does not mention the research integrity decision.
Defendants argue that Rao has not alleged that Rusch was responsible for a retaliatory
act, as Rush was only alleged to have “escalated” the investigation, which does not constitute a
retaliatory act under the statute, which is limited to any “reprimand, discharge, suspension,
52
demotion, denial of promotion or transfer, or change in the terms or conditions of employment.”
5 Ill. Comp. Stat. Ann. 430/15-10; (Dkt. 220 at 17.) Defendants also argue that even if there
were an issue of fact as to Rusch making a retaliatory act, summary judgment is still appropriate
because it is undisputed that the University “would have taken the same unfavorable personnel
action in the absence of that conduct.” 5 Ill. Comp. Stat. Ann. 430/15-20.
As a threshold matter, Rao failed to respond to Dr. Rusch’s arguments regarding
summary judgment on his SOEEA claim. As such, he has waived opposition to the argument.
See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an
argument . . . results in waiver.”). Even if the Court were to examine the substance of the claims
without his input, summary judgment is still appropriate for the reasons articulated by
Defendants and similar reasons that justify granting summary judgment on his Title VII
retaliation claims.15 First, the “escalation” of the investigation in November 2012 does not
constitute a retaliatory act under the SOEEA. Second, Rao has failed to identify any evidence
that the investigation escalated following his purported protected activity in November 2012 or
that Rusch was involved in any such escalation. Lastly, as discussed in detail above, there is no
evidence linking the alleged protected activity and the retaliatory acts, nor has Rao created any
doubt as to the legitimate reasons for investigating Rao’s misconduct, as discussed in depth in
the Court’s analysis of Rao’s national discrimination claim. As a result, summary judgment in
favor of Defendants is appropriate on Rao’s SOEEA claim.
III.
Dr. Rao’s Section 1983 Claims
Rao also alleged that Drs. Rusch and Azar deprived him of his constitutional rights to due
process and equal protection in violation of Section 1983. Specifically, he alleges that they
15
See, e.g., Hosick v. Chic. State Univ. Bd. of Trs, 924 F. Supp. 2d 956, 975 (N.D. Ill. 2013) (considering judicial
interpretations of Title VII when analyzing SOEEA claim because there were no relevant state court interpretations
of the SOEEA).
53
deprived him of his property interest in his employment when they participated in the decision to
constructively discharge him and engaged in the research integrity investigation where both
processes lacked due process. (Dkt. 86 ¶¶ 79-84.) Rao also alleges that Drs. Rusch and Azar
deprived him of his constitutional right to equal protection when they treated him differently than
other similarly situated individuals outside of his protected class.16 (Id. ¶¶ 85-91). Section 1983
creates a cause of action against "[e]very person, who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws.” 42 U.S.C. § 1983.
B.
Due Process
Both sides have moved for summary judgment on Rao’s Due Process claim.
“To
demonstrate a procedural due process violation of a property right, the plaintiff must establish
that there is (1) a cognizable property interest; (2) a deprivation of that property interest; and (3)
a denial of due process. Accordingly, a plaintiff asserting a procedural due process claim must
have a protected property interest in that which [he] claims to have been denied without due
process.” Price v. Bd. of Educ. of Chic., 755 F.3d 605, 607 (7th Cir. 2014) (quoting Khan v.
Bland, 630 F.3d 519, 527 (7th Cir. 2010)).
1.
Dr. Rao’s Alleged Constructive Discharge
Rao argues that he is entitled to summary judgment on his due process claim because all
of his positions were cognizable property interests and that he was either constructively
discharged or coerced into resigning. Defendants argue that Drs. Azar and Rusch were not
16
As noted above “[t]he same requirements for proving [national origin] discrimination apply to claims under Title
VII and the Equal Protection Clause, so we consider them together.” Cole, 838 F.3d at 899.
54
sufficiently involved to render them liable, only Dr. Rao’s tenured position can be considered a
property interest, and the individual defendants are nevertheless entitled to summary judgment
because Rao voluntarily resigned.
a. Property Interests
“A property interest in continued employment can be created in one of two ways, 1) by
an independent source such as state law securing certain benefits; or 2) by a clearly implied
promise of continued employment.
Due-process claims in the context of public employment
require an entitlement to continued employment; more specifically, the plaintiff must have a
legitimate claim of entitlement not to lose a valuable governmental benefit except for cause.”
Palka v. Shelton, 623 F.3d 447, 452 (7th Cir. 2010) (internal quotations omitted). Tenured
faculty members have a property interest in their tenured positions. See Levenstein v. Salafsky,
164 F.3d 345, 351 (7th Cir. 1998) (“It is undisputed that, as a tenured faculty member, he had a
property interest in his job.”); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546
(1985) (“The tenured public employee is entitled to oral or written notice of the charges against
him, an explanation of the employer's evidence, and an opportunity to present his side of the
story.”).
As Defendants concede, Rao’s position as a tenured professor is a cognizable property
interest for purposes of his due process claim. (Dkt. 257 at 2.) Rao goes on to argue, without
support, that his three other appointed, non-tenured positions are also cognizable property
interests. (Dkt. 228 at 3-4.) In support, he argues that his other positions required notice and
hearing for suspensions and terminations and cites Section 12 of Illinois Statutes for “Academic
Staff with Multi-Year Appoints” which, according to its title, governs dismissal of academic
staff with multi-year appointments. (Pl. Ex. 0.) There is no dispute that the three non-tenured
55
positions were not multi-year appointments but were rather annual appointments, renewed on a
yearly basis. (Def. SOF ¶¶ 7-9) Furthermore, Rao has failed to lay any foundation to conclude
that his appointed positions were subject to any formal administrative process. Consequently,
Rao fails to establish that any of those positions were governed by “a system of nondiscretionary
rules governing revocation or renewal.” Barrows v. Wiley, 478 F.3d 776, 780 (7th Cir. 2007)
(quoting Cornelius v. LaCroix, 838 F.2d 207, 210 (7th Cir.1988)). Additionally, Patterson v.
Portch, the one case he cites in support of his argument regarding property interests, says
nothing about non-tenured positions. Instead, the case stands for a proposition not in dispute:
Rao has a “property right in his tenured instructorship and he could not be deprived of it without
due process of law.” Patterson v. Portch, 853 F.2d 1399, 1405 (7th Cir. 1988).
b. Constructive Discharge and Coerced Resignation
The crux of Rao’s due process claim is whether he voluntarily resigned or whether he
was constructively discharged or coerced into resigning. Generally, "[a] public employee who
voluntarily resigns cannot complain about a lack of due process, but an “involuntary” resignation
may in certain circumstances form the basis of a due-process claim." Palka, 623 F.3d at 452.
“Two types of involuntary resignation may qualify—constructive discharge and coerced
resignation. Constructive discharge occurs when an employer makes employment so unbearable
that an employee resigns; coerced resignation is characterized by the presence of a Hobson's
choice in which the employee must resign or suffer severe consequences, such as facing criminal
charges.” Id. at 453. Put another way, a finding of constructive discharge can be made when
“’the handwriting [was] on the wall’ and the axe was about to fall.” EEOC v. Univ. of Chicago
Hosps., 276 F.3d at 332.
Although Dr. Rao argues that a jury could find that he was
56
constructively discharged under either form, the second form is the more appropriate avenue to
evaluate his claims based on the facts of the case.17
Defendants argue that summary judgment is appropriate because Rao had the opportunity
to retain his position and fight the termination proceedings against him, and that “the prospect of
being fired at the conclusion of an extended process, without more, does not meet this standard
[for constructive discharge].” See, e.g., Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 33334 (7th Cir. 2004). Cigan, and the other cases like it cited by the Defendants, however, did not
involve employer conduct that could “undermine the employee's position, perquisites, or dignity
in the interim” and all involved employees who continued to receive pay pending an
administrative hearing. Id. at 333. In Cigan, which involved employment claims by a disabled
teacher, the teacher resigned after the school superintendent recommended that the district
should not renew her contract. Id. at 332. There were no other actions undertaken in the interim
to undermine her job functions and she continued to receive pay. Id. See also Levenstein, 414
F.3d at 775 (agreeing with district court, after it ruled at a bench trial, that tenured University
professor, who resigned after being temporarily transferred with pay during administrative
proceedings, was not constructively discharged); Palka, 623 F.3d at 452 (finding that there were
not sufficient allegations of constructive discharge when employee who was suspended with pay
resigned rather than face an internal investigation and potential loss of benefits); Welter v. City of
Elgin, 2013 WL 1337347, at *5 fn. 6 (N.D. Ill. March 29, 2013) (same).
17
To establish constructive discharge under the harassment theory, Rao would need to show that his “working
conditions must be even more egregious than the high standard for hostile work environment claims, because, in the
ordinary case, an employee is expected to remain employed while seeking redress.” Boumehdi v. Plastaq Holdings,
LLC, 489 F.3d 781, 789-790 (7th Cir. 2007). See, e.g., Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th
Cir. 2010) (providing examples of the high bar of harassment that plaintiffs must fact to show constructive discharge
based on harassment, including threats to personal safety. Rao has not made such a showing nor could he based on
the facts of this case.
57
Unlike those cases, a reasonable jury could view certain facts that are undisputed to be
facts demonstrating that the University undermined Rao’s position, perquisites, and dignity to the
extent that he was coerced into resigning. For example, shortly before the March 21, 2013
meeting, Plaintiff’s access to University property and computer systems were restricted and his
University-issued laptops and electronics were collected shortly thereafter by University
personnel who accompanied him home. (Def. SOF ¶¶ 47-48; Pl. SOF ¶ 40.) Rao was not
informed of how long these restrictions would last and the duration of the restriction is not
reflected in Kaye Scholer’s memo memorializing the meeting. Rao was also informed that the
University was prepared to take action to relieve him of all of his titles and duties, the allegations
against him would be made public, and in the meantime, he would not be permitted to work. (Pl.
SOF ¶¶ 27, 36.) As a result of the restrictions, Rusch did not expect that Rao could perform the
same level of work as he had done before. (Pl. SOF ¶¶ 25, 29, 42; Def. SOAF ¶ 4.) Constructive
discharge has been found under similar circumstances. See EEOC v. Univ. of Chic. Hosps., 276
F.3d 326, 332 (7th Cir. 2002) (finding that EEOC met burden in showing constructive discharge
after University packed up her belongings, along with warning of “intent, plan, and attempt” to
terminate her).
Additionally, in spite of the Defendants’ assertions otherwise, there is disputed evidence
in the record to support the conclusion that the University informed Rao that his pay would
continue during the time he was pondering the offer to resign. In fact, Kaye Scholer’s memo
regarding the meeting does not address the issue. Rao was also told that the allegations against
him would be made public if he did not resign and he was encouraged not to contact his
employees. Rao testified that as a result of the meeting, he felt that he was being terminated.
(Pl. SOF ¶ 72; Pl. SOAF ¶ 45.) At the meeting, the University’s representatives did not ask Rao
58
any questions and Sussman told Rao and his attorney that he did not think anything that anything
Rao or his attorney told him was going to make a difference. (Pl. SOF ¶¶ 34, 48.)
Furthermore, a “[c]ourt may consider an employer's exploitation of a particular
employee's vulnerabilities” in determining whether he was constructively discharged. Fischer v.
Avanade, Inc., 519 F.3d 393, 410 (7th Cir. 2008). The meeting was scheduled with little notice
to Rao and Sussman was aware that Rao had some recent stress-induced health issues and that
his father-in-law had recently passed away. (Pl. SOAF ¶ 24; Pl. SOF ¶ 23.) McNeely, who did
not attend the meeting, was also aware that Dr. Rao had some recent weight loss and health
concerns. (Pl. SOF ¶ 24.) Most significantly, the University knew that Rao was preparing to
attend his father-in-law’s funeral in India within two days of the meeting. (Pl. SOAF ¶ 24; Dkt.
262-3 ¶ 12.) Therefore, the meeting was conducted late on a Thursday afternoon, within 48
hours of Rao’s planned travel to India for the funeral. (Id.) Rao was given until Monday at 9:00
a.m. to make a decision about whether to contest the evidence set forth in the PowerPoint or
resign. A reasonable jury considering all of these facts might conclude that Rao was coerced to
resign.
Of course, many facts weigh against a finding of coercion including and significantly that
Rao was represented by counsel and had access to other family members who were lawyers who
could advise him. Yet tellingly, Rao’s attorney informed Sussman that Rao had made up his
mind within hours of the meeting and after speaking with family members including his wife,
presumably the daughter of the man whose funeral they were about to leave to attend within
twenty-hour hours. Whether that familial advice or even the attorney’s advice under those
circumstances would constitute lack of coercion is less clear under the unique circumstances. It
59
is precisely this type of competing factual scenarios and how a juror might view them that
requires a jury to make the determination.
For these reasons, neither side is entitled to summary judgment as to Dr. Rao’s due
process claim as it pertains to his alleged constructive discharge.
c. Drs. Rusch and Azar’s Personal Involvement
Rao’s Section 1983 claims require him to demonstrate that Drs. Rusch and Azar were
personally involved in the alleged constitutional deprivations. See O'Shell v. Cline, 571 F. App'x
487, 491 (7th Cir. 2014). Hildebrandt, 347 F.3d at 1039 (“For a defendant to be liable under §
1983, he or she must have participated directly in the constitutional violation.”) To be liable,
there must be some causal connection or affirmative link between the actions complained of and
Drs. Rusch and Azar and the constitutional deprivations, meaning that they “must know about
the conduct and facilitate it, approve it, condone it, or turn a blind eye....” Gentry v. Duckworth,
65 F.3d 555, 561 (7th Cir. 1995) (quotation omitted).
Defendants argue that Rusch and Azar played no role in the decision restrict Rao’s access
to University property and computer systems. There is sufficient evidence, however, to create a
triable issue as to whether Rusch and Azar were sufficiently involved in Rao’s departure from
the University to be personally liable. Rusch received the initial allegations against Rao, formed
the Dean’s Committee to investigate the allegations, guided the scope of its inquiry, and then
forwarded the allegations to McNeely. (Def. SOF ¶¶ 16, 18-21.) After Azar became aware of the
allegations, he recommended that Rusch forward her concerns to an appropriate body for further
investigation. (Pl. SOAF 41.) On September 4, 2012, Rusch and Azar met with McNeely and
others to define a plan of action regarding the allegations againstRao. (Dkt. 227-6 at 207:9-20.)
Rusch was interviewed twice by Kaye Scholer as part of the investigation. In February 2013,
60
Rusch and Azar attended a Board meeting where Rao was discussed.
(Pl. SOAF ¶ 43.)
McNeely does not recall Rusch or Azar being present at the meeting where it was decided that
Rao would be presented with the evidence of Kaye Scholer’s investigation, although Rusch was
aware that the meeting was going to take place and McNeely informed her that she hoped Rao
would resign. (Dkt. 227-6 at 263:14-23; Dkt. 227-3 at 171:13-23.) Azar and Rusch also were
part of conversations, with various updates, leading up to the decision to offer Rao the
opportunity to resign. (Dkt. 227-6 at 14-23.) Rusch was also aware that Rao’s access to his
office and the University computer systems were being limited since her assistant made the
arrangements. (Pl. SOAF ¶ 45; Pl. SOF ¶ 41.) As a result, Rusch did not expect that Rao could
perform the same level of work as he had before. (Pl. SOAF ¶ 45.) Following the meeting,
McNeely updated Rusch and informed her that the University was waiting for Rao’s response.
(Pl. SOAF ¶ 34.) Rusch testified that she did not think she should have been present at the
March 21, 2013 meeting because she was not involved in the investigation. (Pl. SOAF ¶ 34.)
Rusch met with Dr. Rao’s department following Rao’s resignation. (Pl. SOAF ¶ 34.)
These facts are sufficient to support the conclusion that Drs. Rusch and Azar were
sufficiently involved to be held liable under Section 1983. In fact, a defendant who just “set[s]
in motion” a series of events that he knew or should have known would cause others to deprive
plaintiff of rights may be liable under § 1983.” Conner v. Reinhard, 847 F.2d 384, 396–97 (7th
Cir. 1988).
2.
Research Integrity Investigation
Drs. Rusch and Azar, however, are entitled to summary judgment on Dr. Rao’s due
process claims regarding the research integrity decision. Dr. Rao failed to respond to the
Defendants’ motion for summary judgment on this point and does not raise it whatsoever in his
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own motion for partial summary judgment. As a result, the argument is waived. See Bonte, 624
F.3d at 466 (“Failure to respond to an argument . . . results in waiver.”).
There is good reason for Rao to concede summary judgment on this point. Rao has not
presented sufficient evidence for a reasonable jury to conclude that Dr. Rusch or Dr. Azar were
sufficiently involved in the research integrity decision.
Drs. Rusch and Azar referred the
research integrity investigation to Dr. Grabiner who oversaw the pre-inquiry, inquiry, and
investigation stages. The Investigation Panel, however, concluded that it “could not reach the
level of confidence as indicated by the term ‘preponderance’” to find that Plaintiff was directly
responsible for the issues with the papers under review, finding that he acted recklessly. (Def.
SOF ¶¶ 71, 74.) After that point, Dr. Dutta, made the recommendation that Dr. Rao be held
responsible for the research misconduct. (Def. SOF ¶ 72.) Plaintiff has failed to identify any
evidence that either Drs. Rusch or Azar played any role in that determination or the subsequent
decision by the University President to affirm Dr. Dutta’s recommendation.
Second, Rao cannot show that the Research Integrity decision deprived him of a
cognizable property interest. As Rao recognizes, the only recognized property interest in regards
to his employment at the University was his position as a tenured professor. It is undisputed that
this position terminated in March of 2013, long before Dr. Dutta came to her conclusion in the
research integrity investigation.
As a result, Rao cannot show that he was deprived of a
cognizable property interest as a result of the research integrity decision.
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CONCLUSION
For the foregoing reasons, Dr. Rao’s motion for partial summary judgment is denied and
the Defendants’ Motion for Summary Judgment is granted as to Counts I, II, VII, VIII, and X but
denied as to Count IX.
Dated: June 5, 2017
______________________________
Hon. Virginia M. Kendall
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