Edelman v. Loyola University Chicago
Filing
91
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 5/17/2019: For the reasons set forth in the accompanying Memorandum Opinion and Order, the defendant's motion for summary judgment 64 is denied in part and granted in part. A status hearing is set for 6/18/19 at 9:00 a.m. for purposes of determining how this matter will proceed. Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
OLIVIA MACIEL EDELMAN,
Plaintiff,
v.
LOYOLA UNIVERSITY CHICAGO,
Defendant.
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No. 16 CV 07971
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Olivia Edelman filed a complaint against Loyola University of Chicago alleging that it
discriminated against her because of her age when it did not select her to interview for a tenure
track professor position and retaliated against her after she complained about the selection process.
Loyola moved for summary judgment. The motion is denied in part and granted in part: Edelman
has produced sufficient evidence to support a jury verdict in her favor with respect to her
discrimination claim but has failed to present evidence that she engaged in a statutorily protected
activity as required to succeed on a retaliation claim.
BACKGROUND
In 2010, Loyola University of Chicago hired Olivia Edelman, then 53 years old, for a oneyear lecturer position. Defendant’s Response to Plaintiff’s Rule 56 Statement of Facts (“Response
to PSOF”) ¶ 6, ECF No. 86. At the end of the year, Loyola re-hired Edelman for a three-year
renewable, non-tenure track position in Loyola’s Modern Languages and Literatures Department
teaching classes dealing with Spanish composition, conversation, and grammar, as well as Spanish
and Latin literature. Id. at ¶ 7.
In September 2012, Loyola posted an advertisement for a tenure track Assistant Professor
of Spanish position. Id. at ¶ 9. A search committee comprised of Loyola faculty members David
Posner, Deni Heyck, Alrick Knight, Elizabeth Lozano Rocha, and Brian Lavelle was formed to
select an individual to fill the position. Posner was appointed as Chair of the committee. Id. at
¶¶ 15-16. The job posting explained that the field of specialization for the position was Latin
American Literature, and described the minimum qualifications required for the job as follows:
The successful applicant will have a Ph.D, in Latin American Literature, by the
time of hire, and a strong commitment to excellence in teaching at all levels.
Candidates for the position must also clearly demonstrate the potential for
distinguished scholarship, grant-funded research, and student mentorship.
Plaintiff’s Ex. J-6, ECF No 77. 1
Edelman, who at the time held a Ph.D. in Romance Languages and Literatures with a
specialization in Latin American Literature, applied for the position. Plaintiff’s Ex. J-21, ECF No.
80. Out of approximately 200 initial applicants, the search committee selected 20 initial
interviewees and eventually narrowed that pool to four finalists. Defendant’s Statement of Facts
(“DSOF”) ¶ 17, ECF No. 57. In January 2013, Edelman learned that she had not been selected for
even the first round of interviews. Edelman, believing that she was more qualified than the four
finalists who were brought to campus, met with Department Chair Dr. Bernadita Llanos in early
February to raise her concerns about the search process. Response to PSOF at ¶ 22. As a follow
up to that meeting, Edelman wrote to Dr. Llanos expressing her belief that “there was a significant
procedural error in the Search Process that needs to be corrected.” Plaintiff’s Ex. J-9, ECF No. 78.
The next day, Dr. Llanos e-mailed Posner to inform him of Edelman’s concerns. In her e-mail, Dr.
Llanos requested that the search committee provide an explanation for why Edelman had not been
selected to interview given that Edelman had “more experience in teaching” than the finalists, an
1
Loyola states in its response to Edelman’s Rule 56 Additional Statement of Facts that the
advertisement “does not purport to list all of the qualifications for the tenure track position of
Assistant Professor of Spanish.” Response to PSOF ¶ 9, ECF No. 86. To the extent Loyola suggests
that there were other minimum job requirements, that statement is unsupported by the record.
2
“established publishing record,” and “excellent” teaching evaluations in her literature classes.
Plaintiff’s Ex. J-3, ECF No. 76.
Dr. Posner did not take kindly to Edelman’s aspersions about the search process. He
responded to Dr. Llanos by stating that “[t]he search committee was not interested merely in
quantity of publications or length of experience. If this were the case, then we would simply hire
the oldest person and be done with it.” According to Posner, the quality of Edelman’s scholarship
did not “measure up” to that of the finalists. He also added that Edelman’s “astoundingly
unprofessional behavior clearly demonstrates why she is not a suitable candidate for the position.
No department could tolerate this sort of thing.” Plaintiff’s Ex. J-4, ECF No. 77. Posner then
forwarded Dr. Llanos’s e-mail and his response to Reinhard Andress, Loyola’s Dean of the College
of Arts and Sciences. Id. On February 5, 2013, Andress e-mailed Edelman asking her to desist
from “trying to influence the search for the Latin Americanist position” and instructing her to
“accept and respect the decisions by the search committee.” Plaintiff’s Ex. J-10, ECF No. 78. At
some point, the search committee destroyed all documents that they had used or developed during
the search process. 2 Response to PSOF at ¶ 30.
On March 5, 2013, Andress lowered Edelman’s teaching rating from a 3.7 out of 5, which
Dr. Llano’s had given her, to a 3 (which correlated with “meeting expectations”) and her overall
instructor rating from 4 to “3+” for the stated purpose of “being consistent across the department
in these assessments” in light of Edelman’s “below-average teaching evaluations for the courses
2
Loyola “disputes” this fact, arguing that it is not supported by the portion of Posner’s
deposition cited by Edelman because Posner stated only that the committee was “instructed” to
destroy its notes, not that it actually did so. See Plaintiff’s Ex. G 29:14-16, ECF No. 73. But Loyola
cannot genuinely claim that the committee did not destroy the documents: Posner testified in a
later portion of his deposition that interview notes were in fact destroyed at the end of the process
like “all the other stuff was,” Id. at 53:1-9, and Loyola does not point to any other evidence
suggesting that the documents still exist.
3
and as an instructor.” Plaintiff’s Ex. J-5, ECF No. 77. Then, in April 2013, Andress informed
Edelman that her non-tenure track contract would not be renewed due to “changing curricula,” but
that once the exact details of the curricular needs were determined, she was “welcome to apply”
for a different position. Plaintiff’s Ex. J-18, ECF No. 79.
Edelman filed a Charge of Discrimination with the EEOC on October 25, 2013 alleging
age discrimination. DSOF at ¶ 64. On October 30, 2013, Loyola posted a job advertisement for a
three-year non-tenure track lecturer position. Edelman applied but was not hired. Compl. at ¶¶ 34,
36. In May 2014, Edelman filed an amended charge with the EEOC alleging discrimination and
retaliation. After receiving a right to sue letter, she initiated this suit alleging that Loyola violated
the ADEA by discriminating against her because of her age and retaliating against her for raising
her concerns. After more than a year of discovery, Loyola filed a motion for summary judgment.
DISCUSSION
I.
Compliance with Local and Federal Rules
As a preliminary matter, the Court must address Loyola’s argument that Edelman failed to
comply with the Northern District of Illinois’ Local Rules in responding to its motion. The Local
Rules require a party moving for summary judgment to file a statement consisting of short
numbered paragraphs laying out the material facts it contends are undisputed. LR 56.1(a)(1)(3).
The opposing party must then file 1) a response to each numbered paragraph including, in the case
of a disagreement, a specific reference to the record and 2) its own statement, consisting of short
numbered paragraphs, of any additional facts that require the denial of summary judgment. LR
56.1(b)(3)(B), (C). “All material facts set forth in the statement required of the moving party will
be deemed to be admitted unless controverted by the statement of the opposing party.” LR
56.1(b)(3)(C).
4
Loyola argues that its statement of facts must be deemed admitted because Edelman either
failed to cite specific parts of the record in her responses or cited to inadmissible declarations. It
is true that Edelman frequently cites to entire multi-page exhibits in her responses to Loyola’s
statement of facts instead of including “the line, paragraph, or page number where the supporting
material may be found in the record” as required by this Court’s standing order. 3 See Case
Procedures,
https://www.ilnd.uscourts.gov/judge-info.aspx?79eF+7uiX7ewBj/ITKrjoA==;
Plaintiff’s Response to DSOF, ECF No. 65. And “a district court is entitled to expect strict
compliance with Rule 56.1.” Ammons v. Aramark Unif. Services, Inc., 368 F.3d 809, 817 (7th Cir.
2004). That said, Edelman’s own statement of facts properly cites to specific paragraphs or pages,
see Plaintiff’s Statement of Undisputed Material Facts (“PSOF”), ECF No. 66, so the Court is not
totally without a “roadmap” for its analysis. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 923
(7th Cir. 1994). Accordingly, to the extent the facts set forth in that document controvert the facts
set forth by Loyola, Loyola’s statements will not be deemed admitted.
Whether the facts set forth by Edelman are supported by admissible evidence is a separate
issue. Federal Rule of Civil Procedure 56(c)(4) permits the use of affidavits or declarations to
support or oppose a motion for summary judgment so long as they are “made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Edelman has submitted, among other
things, three unsworn declarations: her own, Wiley Feinstein’s (the former chair of Edelman’s
3
Edelman’s responses also include various statements that go beyond mere admission or
denial. See, e.g., Plaintiff’s Response to DSOF at ¶ 9 (“Plaintiff objects to this statement as it
selects language from the Faculty Handbook which is taken out of context . . . .”). The Court will
disregard any argumentative, conclusory, or unsupported portions of Edelman’s responses.
Menasha Corp. v. News Am. Mktg. In-Store, Inc., 238 F. Supp. 2d 1024, 1029 (N.D. Ill. 2003),
aff’d, 354 F.3d 661 (7th Cir. 2004).
5
department at Loyola), and Herbert Richardson’s (the Editor-in-Chief of a scholarly press that
published a book written by Edelman). See Plaintiff’s Exs. B-D, ECF No. 67. Loyola urges the
Court to disregard these declarations because they fail to comply with 28 U.S.C. § 1746, which
allow unsworn declarations to be substituted for sworn declarations so long as they are “dated and
signed by the declarant ‘under penalty of perjury’ and verified as ‘true and correct.’” Aberman v.
Bd. of Educ. of City of Chicago, 242 F. Supp. 3d 672, 677 (N.D. Ill. 2017).
The Court permitted Edelman to amend her declaration, which now includes a paragraph
at the end stating that she declares “under penalty of perjury that the foregoing is true and correct”
and is properly signed and dated. Plaintiff’s Amended Ex. B, ECF No. 84. Loyola’s argument is
therefore moot with respect to Edelman’s declaration. The other two declarations, however, do not
include language suggesting that they were made “under penalty of perjury.” Plaintiff’s Ex. C, Ex.
D. While the Seventh Circuit has held that unsworn declarations not subscribed under penalty of
perjury do not comply with former Federal Rule of Civil Procedure 56(e), see DeBruyne v.
Equitable Life Assurance Society, 920 F.2d 457, 471 (7th Cir. 1990), it has not had occasion to
address whether such declarations comply with the version of the Rule as amended in 2010—now
Rule 56(c)(4)—which no longer requires a formal affidavit. Jajeh v. County of Cook, 678 F.3d
560, 568 (7th Cir. 2012). This Court is nevertheless inclined to follow the other courts in this
district that have continued to exclude noncompliant unsworn declarations from their summary
judgment analyses, see, e.g., Aberman, 242 F. Supp. 3d 672, 677 (N.D. Ill. 2017); Barker v. Quick
Test, Inc., 13 C 4369, 2016 WL 1019708, at *2 (N.D. Ill. Mar. 15, 2016), particularly given the
fact that Feinstein’s and Richardson’s declarations explicitly refer to 28 U.S.C. § 1746 yet
nevertheless fail to comply with its directives. That said, the Court need not definitively resolve
6
the issue at this time because, as discussed below, the outcome would be the same with or without
consideration of those declarations.
II.
Discrimination Claim
The ADEA prohibits employers from discriminating against workers 40 years of age and
older “because of” their age. 29 U.S.C. § 623(a)(1). This means that to prevail on an ADEA claim,
a plaintiff must prove that his or her age was the “but-for” cause of a legally recognized adverse
employment action—it is not enough to show that age was a motivating factor. Wrolstad v. Cuna
Mut. Ins. Soc'y, 911 F.3d 450, 454 (7th Cir. 2018) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 177–78 (2009)). Age is a “but-for” cause of an adverse employment action if it “played a role
in the employer’s decision-making process and had a determinative influence on the outcome.”
Van Antewerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010).
To establish causation, a plaintiff may present “direct or circumstantial evidence” of age
discrimination or proceed under the McDonnell Douglas burden-shifting approach. Wrolstad, 911
F.3d at 454. Under either method, the ultimate question the Court must address in ruling on a
defendant’s motion for summary judgment is whether a jury could reasonably conclude that the
employer discriminated against the plaintiff because of his or her age. Id.; see also Ortiz v. Werner
Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016). If so, it must deny the motion. In answering that
question, the Court construes all facts and draws all reasonable inferences in the light most
favorable to Edelman, the non-moving party. Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 673
(7th Cir. 2012).
7
Edelman asserts that Loyola discriminated against her because of her age when it failed to
hire her for the Assistant Professor of Spanish tenure track position. 4 Loyola does not dispute that
its decision not to hire Edelman constitutes an actionable adverse employment action; it argues
only that Edelman has failed to produce evidence suggesting that Loyola would not have made
that employment decision but-for Edelman’s age.
To establish a prima facie case under McDonnell Douglas, the framework Edelman appears
to invoke, she must show that 1) she was a member of a protected class; 2) she was qualified for
the position sought; 3) she was rejected for the position; and 4) the employer hired someone
substantially younger who was not better qualified for the position. Riley v. Elkhart Cmty. Sch.,
829 F.3d 886, 892 (7th Cir. 2016). 5 If Edelman can do so, the burden shifts to Loyola to offer a
legitimate, nondiscriminatory reason for the adverse employment action. Then, the burden shifts
4
In her complaint, Edelman alleged that Loyola also discriminated against her by
terminating her non-tenure track employment contract and refusing to interview her for a different
non-tenure track lecturer position. Compl. ¶ 46. Loyola argues that Edelman cannot show that
those actions were taken because of her age. Defendant’s Memorandum in Support of its Motion
for Summary Judgment 11-13, ECF No. 55. Edelman does not respond to that argument, choosing
instead to address the non-renewal of her contract and Loyola’s refusal to interview her for the
other position only in the context of her retaliation claim. As such, she has forfeited any argument
that those actions form the basis for a discrimination claim. See Ennin v. CNH Indus. Am., LLC,
878 F.3d 590, 595 (7th Cir. 2017) (“Failure to respond to an argument generally results in waiver,
and failure to present an argument to the district court usually means we will not address it on
appeal.”); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (failure to respond to an
argument results in waiver).
5
While courts often state that a prima facie case under McDonnell Douglas requires that
the comparator be “outside the protected class,” that element is not required in an age
discrimination action. That is because the ADEA “does not ban discrimination against employees
because they are aged 40 or older; it bans discrimination against employees because of their age,
but limits the protected class to those who are 40 or older.” O'Connor v. Consol. Coin Caterers
Corp., 517 U.S. 308, 312 (1996). In other words, an over-40 ADEA plaintiff can prevail even if
he or she lost out on a job to another over-40 individual so long as he or she produces evidence
that the employment decision was impermissibly based on age. Such an inference cannot be drawn,
however, unless the favorably treated comparator is “substantially younger” than the plaintiff.
Morrow v. Donahoe, 564 Fed. Appx. 859, 861 (7th Cir. 2014).
8
back to Edelman to show that the stated reason is a pretext for discrimination. The first and third
prongs of Edelman’s prima facie case are not in dispute, and Loyola does not dispute that, as to
the fourth, the 20 initial interviewees and four finalists were all substantially younger than
Edelman. 6
To establish a prima facie case, that leaves only the question of whether Edelman was
qualified for the position. And because Loyola’s stated reason for not selecting Edelman to
interview is that other candidates were more qualified, the remaining aspect of the prima facie case
merge with the pretext analysis. See Peirick v. Indiana Univ.-Purdue Univ. Indianapolis Athletics
Dept., 510 F.3d 681, 687 (7th Cir. 2007) (explaining that the analysis merges when the plaintiff
argues that the employer is lying about elements required to establish prima facie case). The
question, then, is whether Edelman has produced sufficient evidence of pretext to allow a
reasonable jury to conclude that Loyola rejected her application because of her age. Although her
evidence is not overwhelming, it allows her to clear this low hurdle.
“The pretext analysis focuses on whether the reason was honest and not whether it was
accurate or wise.” McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009). Loyola maintains
6
At the time Edelman applied for the position, she was 55 years of age. PSOF ¶ 13. In her
response brief, she states that of the 20 individuals selected for initial interviews, the oldest was
47 years of age and thirteen were younger than 40. Plaintiff’s Response Brief 3, ECF No. 64. In
support, she cites only to “Exhibit 2, Exhibit 3.” The Court presumes that citation refers to
attachments to her declaration, see Plaintiff’s Ex B, ECF No. 67 (as amended by ECF No. 90),
which include a roster of the 20 initial interviewees and their ages as approximated by Edelman
based on “searching the internet.” Id. at ¶ 30. The Court is skeptical about the reliability of that
document, but Loyola does not question the gist of Edelman’s assertions; indeed, it seems to take
the position that none of the initial interviewees were over the age of 40. See DSOF at ¶ 31 (“The
Committee never discussed the fact that none of the Finalists or Original Interviewees were over
40 during the evaluation process.”). Because “a ten-year age difference with a comparator is
presumed to be substantial,” Morrow, 564 Fed. Appx. at 861, and Loyola has not made any
argument to the contrary, the Court assumes that this aspect of Edelman’s prima facie case is
undisputed.
9
that Edelman has not presented proof of a lie. But the Seventh Circuit has explained that a
“smoking gun” is not required to establish pretext. Dishonesty may be inferred from, among other
things, evidence that similarly situated employees outside the protected class received
systematically better treatment, “whether or not rigorously statistical,” 7 as well as evidence of
suspicious or ambiguous comments directed towards members of the protected class. 8 Mullin v.
Temco Mach., Inc., 732 F.3d 772, 778 (7th Cir. 2013).
Here, the ages and characteristics of the 20 initial interviewees are not well established by
the record, and neither are the ages and characteristics of the 180-odd applicants who were not
7
Loyola cites to Radue v. Kimberly-Clark Corp., 219 F. 3d 612, 617 (7th Cir. 2000) and
Plair v. EJ Brach & Sons, Inc., 105 F.3d 343, 348-349 (7th Cir. 1997) in support of its proposition
that statistics are not a proper means to prove discrimination in a disparate treatment case. But
Radue does not suggest that statistical evidence is never relevant. The Seventh Circuit there merely
rejected the specific statistics that the plaintiff had presented because they did not assess
comparable individuals. And while Plair states that “statistics are improper vehicles to prove
discrimination in disparate treatment (as opposed to disparate impact) cases,” 105 F.3d at 349, in
context, that statement is better understood as suggesting only that statistics “standing virtually
alone” are insufficient to establish discriminatory intent. Id. In this case, rough statistics are one
of many factors arguably pointing toward age discrimination.
8
Loyola also argues that the age composition of the search committee belies an inference
of discrimination because four of the five members were 50 years or older. Defendant’s
Memorandum of Law in Support of Motion for Summary Judgment at 10. The fact that the
decision-maker is in the same protected class as the plaintiff, however, does not immunize an
employer from employment discrimination claims. See generally Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 79 (1998) (“[N]othing in Title VII necessarily bars a claim of
discrimination “because of ... sex” merely because the plaintiff and the defendant (or the person
charged with acting on behalf of the defendant) are of the same sex.”); Williams v. Wendler, 530
F.3d 584, 587 (7th Cir. 2008) (“There can, it is true, be ‘racial’ discrimination within the same
race . . . .”). This case alleges age discrimination under the ADEA, not sex or race discrimination
under Title VII, but the principles set forth in Oncale and Williams seem equally applicable here.
See Types of Discrimination: Age, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
https://www.eeoc.gov/laws/types/age.cfm (“Discrimination can occur when the victim and the
person who inflicted the discrimination are both over 40.”). While the age composition of the
search committee does seem to render Edelman’s claim less plausible, it is up to the jury, not the
Court, to weigh that evidence.
10
selected to interview. But Edelman maintains that she discerned from materials provided to her by
the EEOC that most of the 20 initial interviewees and all four finalists were in their thirties,
Plaintiff’s Ex. E-1 102:6-13, ECF No. 69, and Loyola makes no argument to the contrary. Loyola
does argue in a footnote that Edelman has not set forth any evidence establishing that the
employees included in those rough statistics were similarly situated to her. Defendant’s Reply
Brief 8 n.3, ECF No. 85. As the Seventh Circuit has explained, however, the inquiry into whether
a comparator is similarly-situated is “flexible” and “common-sense.” Coleman v. Donahoe, 667
F.3d 835, 841 (7th Cir. 2012). The other applicants applied for the same job and were assessed by
the same search committee. Further, the evidence presented regarding the characteristics of the
four finalists, see Plaintiff’s Ex. J-24, does not suggest that their backgrounds and qualifications
were so different from Edelman’s as to preclude meaningful comparison. See Skiba v. Illinois Cent.
R.R. Co., 884 F.3d 708, 723 (7th Cir. 2018) (explaining that comparators are similarly situated
where they dealt with the same supervisor, were subject to the same standards, and engaged in
conduct without such differentiating circumstances as would distinguish the employer’s treatment
of them). A jury could therefore reasonably infer from this evidence that the search committee was
improperly focused on the age of the applicants.
There is also evidence in the record of suspicious age-related comments. For example,
Posner explained that the committee did not interview Edelman because it “was not interested
merely in quantity of publications or length of experience. If this were the case, then we would
simply hire the oldest person and be done with it. We were interested above all in quality and
potential; this is, after all, an Assistant Professor position.” Plaintiff’s Ex. J-4. Of course, one might
infer from this statement that the committee did not consider age at all, focusing only on ageneutral attributes such as the quality of the applicants’ publications. But one might also infer from
11
Posner’s juxtaposition of “not simply hiring the oldest person” on the one hand and the
committee’s desire to hire someone with “potential” on the other that the committee was
specifically interested in hiring “younger” applicants because they were younger. True, seeking
someone with “potential” does not necessarily mean seeking someone “young.” See Wrolstad, 911
F.3d at 455 (“potential for longevity” not a proxy for age where employer tied potential to ageneutral factors such as enthusiasm for the position). Here, though, Posner explicitly conflates
length of experience and number of publications with age in a way that suggests he might also
impermissibly conflate “potential” with fewer publications and, accordingly, youth. See Hazen
Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (explaining that age and pension status are
analytically distinct such that a decision based on years of service is not necessarily age-based but
leaving open the possibility that an employer who supposes a correlation between the two factors
and acts accordingly may engage in age discrimination). In other words, Posner’s comment could
be read as “indirectly invok[ing] the disparaging stereotypes” that the ADEA seeks to prohibit—
here, that older people have less “potential.” Carson v. Lake County, Indiana, 865 F.3d 526, 534
(7th Cir. 2017). Because the comment is ambiguous, “[a] jury is the appropriate body to evaluate
[its] significance . . . .” Mullin, 732 F.3d at 778. 9
Additionally, dishonesty may be inferred from “flagrant inaccuracies or inconsistencies in
an employer's proffered reason for an employment decision.” Baker v. Macon Res., Inc., 750 F.3d
9
Jurors might also reasonably construe Posner’s ambiguous and self-congratulatory
statement that the committee was scrupulously above-board in its treatment of “sensitive issues
relative to certain candidates,” Plaintiff’s Ex. J-4, as similarly, albeit inadvertently, exposing an
inappropriate focus on potentially discriminatory criteria. Jurors could further conclude that
Posner’s hostile reaction to learning of Edelman’s inquiries concerning the selection process
(deeming her inquiry, which was endorsed by both her current and former department chairs, to
be “astoundingly unprofessional behavior”) as sufficiently over-the-top that it calls into question
the credibility of Dr. Posner’s proffered rationales for why Edelman was not selected to interview.
12
674, 677 (7th Cir. 2014). Edelman’s argument in this respect is that many of the search
committee’s specific justifications for not selecting her to interview are demonstrably false. For
example, Loyola maintains that Edelman’s application raised red flags because one of her books
was published with Edwin Mellen Press, a “pay-to-play publisher” (i.e., a publisher that does not
subject its publications to rigorous peer review). Defendant’s Memorandum in Support of its
Motion for Summary Judgment 8, ECF No. 55. In Posner’s deposition, he stated that it is “common
knowledge in the profession” that Mellen Press does not operate in accordance with industry
standards. Plaintiff’s Ex. G at 73:11-15, 74:7. But this is at odds with Edelman’s testimony that
her book was peer-reviewed. Plaintiff’s Ex. E-1 at 115:11. It is also at odds with the e-mail Dr.
Llanos sent to Posner in which she refers to Edelman’s book with approval and suggests that
Mellen had in the past published other books written by their colleagues at Loyola. Plaintiff’s Ex.
J-3. If it was well-known in the profession that Mellen Press is of questionable repute, it seems
odd that Dr. Llanos, a member of the profession, would mention the company in an e-mail praising
Edelman. While Posner may have honestly believed that publishing with Mellen Press was a
disqualifying trait, there is at least some evidence that calls that belief into question and it is not
within the Court’s province to weigh such evidence. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986) (“[T]he judge's function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.”). And to the extent
that Posner maintains that he was concerned with Edelman’s failure to submit teaching evaluations
in support of her application, DSOF at ¶ 27, that is at odds with the fact that the job posting did
not specifically request teaching evaluations 10 and the fact that Edelman nevertheless stated in her
10
The job posting directed applicants to submit “a current Curriculum Vitae, a teaching
statement/research agenda, and a letter of interest outlining the candidates qualifications,” and to
provide “the names and email addresses of three individuals prepared to speak to their professional
13
application’s cover letter that she would send “a sample of teaching evaluations” to Posner’s
Loyola address. Plaintiff’s Ex. J-21.
Further, search committee member Brian Lavelle testified in his deposition that he did not
select Edelman as a semifinalist because her scholarly interests were in Mexican poetry and not in
Latin America. Defendant’s Ex. E 32:19-21, ECF No. 57. Edelman responds by noting, with
warranted derision, that “the claim that Mexico is not a part of Latin America is ridiculous.”
Response Brief 8, ECF No. 64. Beyond that, though, Lavelle’s statement is contradicted by
Edelman’s application, which does indeed express an interest in Latin America generally. For
example, it explicitly states that all of Edelman’s research interests “undoubtedly include Latin
American culture” and notes that Edelman has taught various courses on “Culture and Civilization
of Latin America.” Plaintiff’s Ex. J-21. Alone, perhaps, none of these discrepancies are so
“flagrant” as to suggest that the committee’s beliefs were not honestly held. But taken as a whole,
and in conjunction with the other circumstantial evidence discussed above, they create a genuine
dispute as to the search committee’s motivations.
The veracity of these stated justifications are further undermined by the fact that the search
committee destroyed the records and notes it had created during the process once it had filled the
position and after Dr. Llanos had passed along Edelman’s concerns to Posner. Posner testified that
the committee was under “strict instruction” to do so—from whom, he does not specify. Plaintiff’s
Ex. G 29:15-16. Regardless of the source of that instruction, moreover, Posner’s concern about
avoiding “catastrophic” professional and legal problems that could result if evidence of the search
committee’s deliberations became public, Plaintiff’s Ex. J-4, can reasonably be understood to
qualifications for this position,” and forward “additional materials related to teaching excellence
and samples of scholarly publications to: David Posner, Ph.D., Chair.” Plaintiff’s Ex. J-6.
14
suggest that at least one reason that the records were destroyed was to insulate Loyola from
discrimination claims like Edelman’s. That inference is all the more reasonable when one
considers that, according to a policy found on Loyola’s website, search committee chairpersons
are required to retain “search records” for 7 years from the date the search is completed. Plaintiff’s
Amended Declaration, Ex. 4, ECF No. 90. 11 This record falls short of warranting an evidentiary
presumption that the missing records contained evidence favorable to Edelman, 12 but that does not
mean that evidence of Loyola’s destruction of the documents has no probative value: at minimum,
there is a genuine dispute as to the reason Posner destroyed the documents, and given the timing
11
Loyola argues that Edelman’s exhibit is unauthenticated and therefore improperly before
the Court. When ruling on a motion for summary judgment, courts may consider any material that
would be admissible at trial. Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001).
Authentication, a prerequisite for admissibility, “is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). In other
words, the proponent must establish only a prima facie showing of genuineness. United States v.
Harvey, 117 F.3d 1044, 1049 (7th Cir. 1997). Edelman swore under penalty of perjury that the
exhibit in question was available to the public on Loyola’s website as of May 1, 2018, and the face
of the document (which is branded with Loyola’s logo) suggests that it is indeed a record retention
policy applicable to search committees. That is sufficient to establish authenticity at this juncture.
See Hood v. Dryvit Sys., Inc., 04-CV-3141, 2005 WL 3005612, at *2 (N.D. Ill. Nov. 8, 2005)
(authenticity established for purposes of summary judgment where plaintiff’s counsel submitted
affidavit that documents in question were retrieved from defendant’s corporate website); see also
United States v. Brown, 688 F.2d 1112, 1116 (7th Cir. 1982) (“Authentication relates only to
whether the documents originated from [the alleged source]; it is not synonymous to vouching for
the accuracy of the information contained in those records.”). Loyola is free to argue that the policy
did not in fact apply to the tenure track professor search committee or that the committee was
unaware of its existence, but that question is ultimately for the jury.
12
There is not an adequate basis in the present record to conclude that the records were
destroyed because the committee members knew that litigation was imminent or likely. See
generally Norman-Nunnery v. Madison Area Tech. Coll., 625 F.3d 422, 428 (7th Cir. 2010)
(refusing to impose spoliation sanction where plaintiff did not sufficiently establish that defendants
knew litigation was imminent.) That the tenor of the dialog with Edelman had included no express
concerns about any type of unlawful discrimination (much less age discrimination specifically—
see infra at Part III) further weakens the argument that an adverse inference presumption should
apply.
15
and apparent contravention of policy, a jury could reasonably conclude that he did so to conceal
evidence of discrimination.
Finally, as to Loyola’s general assertion that the other applicants were more qualified,
Edelman has presented at least some objective evidence to the contrary. Of particular note is the
undisputed fact that Edelman received a Ph.D. with a specialty in Latin American literature
(exactly what the position posting called for) while one of the four position finalists did not yet
have a Ph.D. and two of the others specialized in more narrow fields. See Plaintiff’s Ex. J-24. The
Court recognizes that “scholars are in the best position to make the highly subjective judgments
related with the review of scholarship and university service,” Farrell v. Butler University, 421
F.3d 609, 616 (7th Cir. 2005), but the import of evidence that Edelman was passed over for
younger candidates who did not possess required, advertised, qualifications for the posted position
does not require highly subjective evaluation of subtle distinctions among candidates. And in any
event, here there appears to be ample dispute even among scholars as to Edelman’s qualifications.
Edelman’s candidacy was strongly supported by both the current and former chairs of the
department. According to Dr. Llanos, Edelman had “more experience in teaching” and a more
established publishing record (“her scholarship record—which I have read—is strong”) than the
applicants selected to interview. Plaintiff’s Ex. J-3. And the former department Chair, Dr. Wiley
Feinstein, believed that she had a record of “extremely high-quality scholarship,” Plaintiff’s. Ex.
J-9, and wrote a letter of recommendation on her behalf. See Response to PSOF at ¶ 14. That said,
evidence of competing qualifications cannot establish pretext unless “there can be no dispute
among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for
the position at issue.” Millbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7th Cir. 2002). That is not the
case here, and had it been the only evidence presented, Edelman’s claim would fall short. But in
16
light of the rough statistical evidence and evidence of false statements and suspicious behavior,
however, it tips the scale in Edelman’s favor and justifies the Court’s conclusion that based on the
evidence presented as a whole, a reasonable jury could find that Loyola refused to interview
Edelman for the tenure track position because of her age. Loyola’s motion for summary judgment
is therefore denied with respect to Edelman’s discrimination claim.
III.
Retaliation Claim
Edelman also maintains that Loyola retaliated against her for raising her concerns about
the search committee by lowing her overall performance rating, terminating her non-tenure track
employment contract, and refusing to interview her for a different non-tenure track position. To
succeed on a retaliation claim, though, a plaintiff must show (among other things) that she engaged
in a statutorily protected activity. Smith v. Lafayette Bank & Tr. Co., 674 F.3d 655, 657 (7th Cir.
2012). Because Edelman has failed to do so, her retaliation claim fails.
In her brief, Edelman focuses on the fact that she raised concerns related to the tenure track
position search process with Dr. Llanos and that Loyola took adverse employment actions against
her shortly thereafter. While filing a complaint with an employer may constitute statutorily
protected activity, the complaint must indicate that the actions taken were because of some
protected trait. Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). “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.” Id. Here,
Edelman did not even complain of discrimination; in her e-mail to Dr. Llanos, she stated only that
that she believed that there was “a significant procedural error in the search process.” Plaintiff’s
Ex. J-9. Nowhere does she mention that she believed the committee’s rejection of her application
17
was based on her age or any other protected trait, 13 and thus her complaint cannot form the basis
for a retaliation claim. And while the temporal sequence of events may be probative of causation,
another required element, it is irrelevant to the inquiry into whether an internal complaint
constitutes protected activity in the first place.
Edelman argues that it was “implicit in this situation that [she] was a woman over the age
of 55” and that she did not specifically reference age discrimination because “she was afraid that
doing so would cause her to lose her job.” Plaintiff’s Response Brief at 13-14. In support, she cites
to O'Leary v. Accretive Health, Inc., 657 F.3d 625 (7th Cir. 2011) and Shaffer v. American Medical
Association, 662 F.3d 439 (7th Cir. 2011). But O’Leary is inapposite, because unlike Edelman, the
plaintiff in that case testified that he had expressly mentioned race discrimination when he
complained to his employer. 657 F.3d at 632. The same goes for Shaffer, where whether the
plaintiff had engaged in protected activity was not at issue. 662 F.3d at 444 (explaining that the
issue before the court was whether a reasonable jury could conclude that the plaintiff’s exercise of
protected activity was a motivating factor behind the adverse employment action). There is simply
nothing in the record (including the declarations which Loyola argues are inadmissible, see supra
Part I) to suggest that Edelman complained that the hiring process had discriminated against her
on the basis of her age. Her internal complaints about that process, then, did not constitute
protected activity and so she cannot prevail on a claim that Loyola retaliated against her for
alleging discrimination. 14
13
To the contrary, Edelman’s email of February 3, 2013 to Dr. Llanos suggests that
Edelman’s concern was that as a non-tenure track instructor (“NTT”) her candidacy for a tenure
track (“TT”) position was not receiving fair consideration—i.e., that her snub was the product of
elitism within the academic hierarchy, not age discrimination.
14
The Court notes that filing a complaint with the EEOC constitutes a statutorily protected
activity, Ajayi v. Aramark Business Services, Inc., 336 F.3d 520, 533 (7th Cir.2003), and Edelman
did so in October 2013, five days before Loyola advertised an opening for another non-tenure track
18
*
*
*
Edelman has presented multiple pieces of evidence which, taken together, would allow a
reasonable jury to conclude that Loyola discriminated against her because of her age. Loyola’s
motion for summary judgment is therefore denied with respect to her discrimination claim.
Edelman has not, however, established that she engaged in statutorily protected activity, so the
Court grants Loyola’s motion for summary judgment with respect to her retaliation claim.
John J. Tharp, Jr.
United States District Judge
Dated: May 17, 2019
position. But she does not argue anywhere in her brief that Loyola retaliated against her for doing
so and most of the complained of conduct occurred well before she filed the complaint. In any
event, Edelman failed to respond to Loyola’s arguments regarding its failure to interview her for
a different position after she filed with the EEOC. As noted above, a party’s failure to respond to
an argument results in waiver. Bonte, 624 F.3d at 466.
19
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