Choi v. Board Of Trustees Of The University Of Illinois et al

Filing 62

OPINION AND ORDER. The Court grants Defendants' motion for summary judgment 47 . The Court enters judgment for Defendants and terminates this case. Civil case terminated. Signed by the Honorable Sara L. Ellis on 4/3/2019. Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SEUNG-WHAN CHOI,
Plaintiff,
v.
BOARD OF TRUSTEES OF THE
UNIVERSITY OF ILLINOIS,
EVAN MCKENZIE, individually,
DENNIS JUDD, individually,
DICK SIMPSON, individually,
Defendants.

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No. 16 C 11627
Judge Sara L. Ellis

OPINION AND ORDER
Professor Seung-Whan Choi, who was reinstated to his post at the University of Illinois
(the “University”) after filing an EEOC claim, asserts that allegedly retaliatory actions taken
after his reinstatement have negatively affected his career and personal life. He brings this
lawsuit against the Board of Trustees of the University of Illinois (the “Board”) and his
supervisors, Evan McKenzie, Dennis Judd, and Dick Simpson, alleging that they discriminated
against him on the basis of his race and national origin. Choi alleges violations of 42 U.S.C. §
1981, Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and 42
U.S.C. § 1983. Defendants move for summary judgment on all claims. The Court grants
Defendants’ motion because Choi cannot establish a materially adverse action for his
discrimination and retaliation claims, because he cannot establish that Defendants’ harassment
was sufficiently severe and pervasive, and because he has waived his equal protection claim.

BACKGROUND 1
Choi is a full professor in the University’s Political Science Department (“POLS”) and a
self-labeled “superstar of the department.” Doc. 49 ¶ 10. He bases this label on his h-index, a
measurement for how widely and frequently a researcher is cited, which is much higher than
anyone else in the POLS department. He was born in South Korea and received a bachelor’s
degree in accounting and a master’s degree in political science during his time in South Korea.
While serving as an officer in the South Korean army, Choi was an instructor of “political
ideology,” a civic education class that persuaded new military recruits that North Korea and
Communism are bad. It was not a particularly nuanced course. Id. ¶ 1. Choi received his Ph.D.
in political science from the University of Missouri in 2002, with an emphasis in international
relations. He is well versed in statistical analysis, having used it in his dissertation and a postdoctoral fellowship at Carleton College in Ottawa, Canada.
In 2004, the University hired Choi as an assistant professor in POLS. In 2010, Choi
learned that the University denied his application for promotion and tenure and gave him a
terminal contract. Choi is aware that Judd supported his 2010 bid for promotion and tenure at
the time. He subsequently filed a charge of discrimination with the EEOC against the Board.
The Board and Choi mediated the dispute, and Choi returned to the University as an associate
professor with indefinite tenure and released all claims he had against the Board (and its
employees and agents) arising on or before August 4, 2011.

The facts in this section are derived from the Joint Statement of Undisputed Material Facts. The Court
has considered Choi’s additional facts and supporting exhibits and Defendants’ response and included in
this background section only those portions of the statements and responses that are appropriately
presented, supported, and relevant to resolution of the pending motion for summary judgment. All facts
are taken in the light most favorable to Choi, the non-movant.

1

2

Simpson, Judd, and McKenzie each served as POLS’ department head at various times
during Choi’s employment. Simpson served from 2006 until fall 2012, Judd took over from fall
2012 until fall 2015, and McKenzie has been serving since fall 2015. Choi’s claims in this
lawsuit arise out of the following incidents:
1.

Partner Accommodation

The University has a Partner Accommodation Policy that provides financial support to
departments where “the successful recruitment or retention of a faculty member is often
dependent on the availability of a suitable job for the faculty member’s spouse/partner.” Doc. 49
¶ 17. The policy notes, “[i]n all cases it is important to stress that there is no guarantee of
employment for a spouse/partner.” Id. ¶ 18. In early 2012, Choi requested Simpson’s assistance
in securing a job for his then-fiancée who was finishing her doctorate in economics. Simpson
told Choi he would review the request. Simpson inquired about an opening in the economics
department, but ultimately, the economics department decided not to extend an offer to Choi’s
fiancée. Simpson was not involved in this decision. Simpson did offer Choi’s fiancée an adjunct
teaching position in POLS for the fall 2012 or spring 2013 semesters, however, which she
declined. At the time Choi made the partner accommodation request, the University had
employed him for eight years and he had no intention of leaving.
2.

Parental Duties Modification

The University has a policy of providing modified duties for faculty members with a new
child. Under the policy, the University can relieve a faculty member of teaching obligations for
one semester. On September 10, 2014, Choi submitted his written request for modified teaching
duties to Judd, who then approved the request on September 16, 2014. Although the
University’s policies are available online, Choi had emailed McKenzie in March 2014, stating

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“I’ve also been thinking about whether I should take a parental leave in the fall or spring
semester, but I have no idea how a parental leave works. If you have any suggestions for me, I’d
love to hear them.” Id. ¶ 29. McKenzie never responded. Choi did not know of the modified
duties policy until another POLS professor, Petia Kostadinova, informed him about it.
3.

Counter Offers

The University maintains a faculty counter offer policy by which “immediate offers to an
employee either from outside the University or from another unit can be countered by an
approved salary increase,” though the University is not obligated to make such counter offers.
Id. ¶¶ 30, 40. To make a counter offer to a faculty member, the University needs a justification
from the department head and the approval of the college in which the faculty member works.
Such requests are then sent to the provost for review and approval. Choi received three offers
from universities in South Korea, the first in December 2010, which Choi admitted he did not
want to take, the second in May 2011, which Choi also admitted he did not want to take, and the
third in July 2012. Id. ¶ 32. The third offer would have made Choi a full professor and give him
a 30% raise. The University did not make counter offers. Astrida Tantillo, the Dean of the
College of Liberal Arts and Sciences, did not believe the University could afford to make a
counter offer on the third offer, and generally, the College of Liberal Arts and Sciences does not
provide counter offers when the offer from the other college or university is for a higher rank
than the faculty member currently holds. Choi chose to stay at the University and turned down
the offer for a full professorship and 30% raise.
4.

Sabbatical

The University has a sabbatical program that allows faculty members to be relieved of
teaching obligations while still receiving full or partial pay. Every six years, a faculty member

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may take a sabbatical for his full salary. Faculty members may apply earlier and receive a
percentage of their salary. Choi took a sabbatical in fall 2012. He applied for another sabbatical
in fall 2016. After consulting Karen Sholeen, Assistant Dean of the College of Liberal Arts and
Sciences, McKenzie reported to Choi that he could take a sabbatical at two-thirds pay or wait
until six years had passed and reapply to receive his full pay. Choi chose to withdraw his
application and reapply in fall 2017 for the spring 2019 semester, which the Board approved.
5.

Exclusion

Choi claims Defendants excluded him from two meetings in his department. These
meetings were never planned or scheduled and never actually occurred.
6.

Dissertation Advisor

Choi claims that POLS did not assign him to supervise any doctoral dissertations.
However, students request dissertation advisors; neither POLS nor the University assigns them.
7.

Ph.D. Program

In fall 2014, following the departure of several faculty members who specialized in
international relations, and the retirement of the senior political theory professor, POLS voted in
favor of not offering international relations or political theory as a primary Ph.D. field, unless the
relevant faculty make a special exception for a particular student.
8.

Research Assistant

Although Choi admits that the University never denied him a research assistant, Choi
claims other faculty received research assistant assignments more quickly than he did but could
not name anyone who did or provide specific dates. POLS commonly assigned research
assistants at the beginning of a semester.

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9.

Course Assignments

All graduate students in the political science Ph.D. program are required to take POLS
401 and 501, which are statistical methods courses. When he interviewed at the University, Choi
gave a presentation using statistical analysis. He believes he has the best statistical skills of
anyone in POLS. He also believes that he has the most experience with quantitative research of
anyone in POLS. Indeed, Choi’s research is based on quantitative analysis using statistical
methods. However, Choi felt discriminated against when the Board and POLS asked him to
teach POLS 401 and 501. He has not taught these courses since 2011. These days, Choi
regularly teaches POLS 232, Korean Politics and Films, which he started teaching in 2010. In
2012, he had the opportunity to identify the classes he is interested in teaching and requested the
opportunity to teach POLS 232 after he had already devoted a significant amount of time and
effort to create lesson plans and prepare for the course. Choi also fought to save the course when
POLS considered dropping it.
10.

Promotion

The Board promoted Choi to full professor in 2016 on his first application for the
position. POLS did not support Choi’s promotion. Despite the department vote, the Chancellor
recommended and the Board approved Choi’s promotion to full professor.
11.

Salary

Due to ongoing labor negotiations, tenured faculty members did not receive pay increases
for Academic Year (“AY”) 2012-2013 or AY 2013-2014 until the summer of 2014. The
collective bargaining agreement (“CBA”) between the Board and the faculty union, provided
varying raise pools based on the combined salaries for all department members eligible to
receive a raise. McKenzie recommended a retroactive 2% raise for Choi for AY 2012-2013, a

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retroactive 4% raise for AY 2013-2014, and a 3.5% raise for AY 2014-2015. Choi received
these raises, which were within the parameters provided for in the CBA. In AY 2016, Choi
received a 1% raise, which was the median raise for POLS that year. The University
implemented a mid-year raise in February 2017; however, the University generally excluded
from these raises faculty members who received raises due to promotions, such as Choi who
received a 10% raise with his promotion in 2016.
12.

Grade Change

Following the fall 2014 semester, one of Choi’s students contested the grade he gave her,
which he had eloquently communicated her grade as “the first letter of Chicago.” Doc. 55 at
275. Choi refused to meet with her if the inquiry was about her grade because it was after the
deadline for any grade concerns. He had already reminded her at least three times about her
class performance during the semester and gave her advice on how she could earn a higher
grade. Judd met with the student and changed her grade from a C to a B without consulting
Choi. Choi claims the incident caused him to lose his “faith about education.” Doc. 49 ¶ 89.
Despite this claim, Choi remains a professor at the University.
LEGAL STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.
To determine whether a genuine issue of fact exists, the Court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed. R. Civ. P. 56 & advisory committee’s notes. The party
seeking summary judgment bears the initial burden of proving that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265

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(1986). In response, the non-moving party cannot rest on mere pleadings alone but must use the
evidentiary tools listed above to identify specific material facts that demonstrate a genuine issue
for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). Although a
bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v.
Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the Court must construe all facts in a light
most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
ANALYSIS
I.

Released and Time-Barred Claims
Defendants raise two preliminary issues: (1) that Choi released all claims against the

Board that occurred prior to their settlement of his EEOC charge of discrimination on August 4,
2011; and (2) that the statute of limitations bars Choi’s § 1981 claim against Simpson, who
stepped down as department chair more than four years before Choi filed the present suit.
A.

Settlement Agreement with the Board

Defendants argue that Choi may not proceed on claims arising on or before August 4,
2011 based on his settlement agreement with the Board, in which he released all claims arising
on or before that date. Choi does not address this argument. The Court sees no reason to ignore
well established precedent and finds that the settlement and release of August 4, 2011 bars
Choi’s claims against the Board and its employees or agents based on incidents taking place
prior to the settlement and release. See Fair v. Int’l Flavors & Fragrances, Inc., 905 F.2d 1114,
1116 (7th Cir. 1990) (“It is well established a general release is valid as to all claims of which a
signing party has actual knowledge or that he could have discovered upon reasonable inquiry.”)
(collecting cases). The Court therefore will not consider claims arising out of the counter offers,

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or lack thereof, of December 2010 and May 2011, or Choi’s assignment to teach the statistical
methods class, which he has not taught since 2011.
B.

Statute of Limitations for § 1981 Claims

Defendants further argue that the Court should enter judgment for Simpson because the
statute of limitations bars Choi’s claims against him where Simpson ceased being the head of the
POLS department more than four years before Choi filed this lawsuit. The four-year statute of
limitations for § 1981 claims runs from the date of the alleged unlawful activity to the date of
filing of the lawsuit. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S. Ct.
1836, 158 L. Ed. 2d 645 (2004). Choi responds and states that the statute of limitations does not
act to bar his allegations arising prior to December 2012 because “they are part of the continuing
discriminatory and retaliatory conduct to which [Choi] was subjected.” Doc. 53 at 6. In support
of this continuing violation theory, Choi relies on Selan v. Kiley, in which the Seventh Circuit
found that a plaintiff may use this theory to avoid a statute of limitations bar when “the plaintiff
had no reason to believe he was a victim of discrimination until a series of adverse actions
established a visible pattern of discriminatory treatment.” 969 F.2d 560, 565–66 (7th Cir. 1992)
(quoting Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989)). Although courts
consider two additional factors in the continuing violation analysis (subject matter and
frequency), the notice factor is the most important. Id. at 566 n.7 (collecting cases labeling notice
factor as “core idea,” “key to the inquiry,” and “the most important”). Given that Choi filed a
discrimination charge with the EEOC in 2010, the Court finds that Choi should have been on
notice to pay attention to subsequent discriminatory treatment. Jones v. Merchants Nat’l Bank &
Tr. Co. of Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994) (“[I]f the plaintiff knew, or with the
exercise of reasonable diligence would have known after each act that it was discriminatory and

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had harmed her, she must sue over that act within the relevant statute of limitations”).
Additionally, as addressed infra, the Court finds that Choi did not suffer any materially adverse
action; therefore, the Court cannot find that he suffered a “series of adverse actions” sufficient to
establish a continuing violation. See Selan, 969 F.2d at 566. Thus, Choi cannot proceed on
action occurring prior to 2012; however, the Court may consider it as background evidence. See
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 153 L. Ed. 2d 106
(2002) (finding that time-barred claims may be used as background evidence in support of a
timely claim).
This finding does not result in automatic judgment for Simpson. Choi’s claims against
Simpson go beyond his time as head of the POLS department, including Simpson’s role on
Choi’s promotion committee, which are timely. Thus, the Court will consider those claims
against Simpson that post-date December 2012 to the extent that Simpson acted with authority to
make decisions affecting the terms and conditions of Choi’s employment.
II.

Discrimination (Counts II and IV)
Choi brings claims against the Board for national origin and race discrimination pursuant

to Title VII, and a race discrimination claim against McKenzie, Judd, and Simpson pursuant to §
1981. Because Title VII and § 1981 cases are “essentially identical” in their elements and
methods of proof, the Court uses the same analysis for both claims. Morgan v. SVT, LLC, 724
F.3d 990, 995 (7th Cir. 2013).
Title VII makes it unlawful for an employer to discriminate against any individual
because of the individual’s national origin or race. Chaney v. Plainfield Healthcare Ctr., 612
F.3d 908, 912 (7th Cir. 2010). Recently, the Seventh Circuit has simplified the analysis of these
issues; the question now is “whether the evidence would permit a reasonable factfinder to

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conclude that the plaintiff’s race [or national origin] . . . caused the discharge or other adverse
employment action.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016).
Choi’s discrimination claims all share one fatal flaw: he has not suffered an actionable
adverse employment action. “A materially adverse employment action is something more
disruptive than a mere inconvenience or an alteration of job responsibilities.” Nichols v. S. Ill.
Univ.-Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007) (citation omitted) (internal quotation
marks omitted). Although materially adverse employment actions extend beyond quantifiable
losses, not everything that causes an employee to be unhappy at work is actionable as an adverse
action. Id. If that were the case, anything that an employee did not like could form the basis of a
discrimination suit. Id. There are three categories of materially adverse employment actions:

Id.

(1) cases in which the employee’s compensation, fringe benefits,
or other financial terms of employment are diminished, including
termination; (2) cases in which a nominally lateral transfer with no
change in financial terms significantly reduces the employee's
career prospects by preventing her from using her skills and
experience, so that the skills are likely to atrophy and her career is
likely to be stunted; and (3) cases in which the employee is not
moved to a different job or the skill requirements of her present job
altered, but the conditions in which she works are changed in a
way that subjects her to a humiliating, degrading, unsafe,
unhealthful, or otherwise significantly negative alteration in her
workplace environment.
Defendants argue that Choi’s complaints regarding partner accommodation, parental

duties modification, counter offers, sabbatical, exclusion from meetings, dissertation advising,
research assistants, Ph.D. program oversight, course assignments, the promotion and tenure
process, salary adjustments, and grade changes do not rise to the level of materially adverse
actions. Although Choi does not directly respond to the issue of materially adverse actions, 2 the
The entirety of Choi’s response on this critical component of his discrimination claim is the single
following sentence: “[t]he question of whether a change in an employee’s working conditions is

2

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Court addresses each claimed adverse action in turn. The Court finds that none of the instances
about which Choi complains amounts to a materially adverse action.
A.

Partner Accommodation Program

Choi asserts that in early 2012 the Board and Simpson failed to hire his spouse through
the University’s Partner Accommodation Program, a program that emphasizes that there is no
guaranteed accommodation. Simpson inquired about an opening in the Economics Department
and offered Choi’s spouse an adjunct teaching position in the POLS Department, which she
declined. Simply put, Choi was not entitled to any accommodation for his spouse. Nonetheless,
Simpson made inquiries and offered Choi’s spouse a position. While the position offered was
not Choi’s preferred outcome, the process and result did not amount to a materially adverse
action.
B.

Modified Teaching Duties

In anticipation of his son’s birth, Choi requested and received modified teaching duties.
Choi’s complaint that McKenzie’s failed to respond to Choi’s email does not satisfy the elements
for a materially adverse action such that Choi can bring a claim for discrimination on this basis.
McKenzie’s lack of a timely response did not delay Choi’s modified teaching duties or cause
him to miss out on the opportunity.
C.

Counter Offers

Choi complains that he did not receive any counter offers, but counter offers, like the
partner accommodation, are retention tools the University can use to keep faculty members from
leaving the University. The University is not obligated to provide faculty with these benefits nor
does the University guarantee that it will provide them should the circumstance arise. The
materially adverse is normally a question of fact.” Doc. 53 at 10 (citing Williams v. Bristol-Myers Squibb
Co., 85 F.3d 270, 273–74 (7th Cir. 1996)).

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University’s decision to decline to make Choi a counter offer did not prevent Choi from
accepting these offers or from deciding to reject them and remain at the University. The
University’s action did not change Choi’s employment conditions at the University; rather, it
maintained the status quo. Thus, the Court does not find this action to be materially adverse.
D.

Sabbaticals

Choi asserts that the University discriminated against him in processing his request for a
sabbatical. The parties agree that Choi received a sabbatical and then applied for a second one
prior to the date before which he was eligible. In response to Choi’s request for a second
sabbatical, the University offered to follow its policy and pay him a diminished salary during this
time or allow him to reapply timely and receive his full salary, which Choi successfully did. The
University’s actions here do not amount to a materially adverse employment action where Choi
received a second sabbatical at full salary within the time period set by the University.
E.

Exclusion from Department Meetings

Choi argues that he was excluded from two departmental meetings that he assumed took
place. These meetings did not take place. Because no Defendant excluded Choi from
departmental meetings, he did not suffer an adverse employment action.
F.

Supervision of Doctoral Dissertations

Choi alleges that the fact that the University has not assigned him to supervise any
doctoral dissertations amounts to an adverse employment action. However, the University does
not assign doctoral dissertations. Rather, individual students request specific advisors from the
University. Because the University nor any Individual Defendant is not responsible for assigning
faculty to supervise doctoral dissertations, Choi cannot base a claim for discrimination against
Defendants on this action. Additionally, Choi has not asserted how the failure to supervise

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doctoral students has adversely impacted his employment. Thus, the Court finds that this does
not rise to a materially adverse employment action.
G.

Assignment of Research Assistants

While Choi complains that Defendants did not provide him with a research assistant or
assigned him a research assistant late, he admits that the University never denied him a research
assistant. Choi does not contend that he ever received a research assistant after the beginning of
the semester, which is when the University generally assigns them. Because Choi received a
research assistant when requested, he cannot base a claim of discrimination on a lack of a
research assistant.
H.

Field of Study and Course Assignments

Choi complains that his area of focus, international relations, is no longer a primary field
for the Ph.D. program in political science and students can only elect it as a secondary field.
Choi does not assert any facts that might show how this change adversely affected the terms and
conditions of his employment. Thus, the Court finds that this is not a materially adverse
employment action.
Additionally, Choi protests about Defendants’ teaching assignment of Political Science
401 and 501, which are statistical methods courses, and 232 which is a Korean politics course.
Choi has not taught the 401 or 501 courses since 2011. As such, the 2011 settlement agreement
and release covers this part of his claim and Choi cannot pursue it. Choi began teaching the
Korean politics course in 2010, he requested the opportunity to teach it again in 2012, and in
2017, he voiced his opinion to save the course from being dropped. It defies logic that Choi has
suffered a materially adverse action by teaching a course that he requested to teach and fought to
save. Thus, Choi cannot base a discrimination claim on this action.

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I.

Promotion and Pay Raises

Choi also complains that, although the Board promoted Choi to full professor on his first
application for promotion, the POLS department recommended against it. Choi makes no claim
that the recommendation by the POLS department delayed or hindered his promotion.
Although Choi claims that “his excellent work is not rewarded by [the University] and his
requests for promotions and adequate raises have been flatly rejected,” the evidence points to the
contrary. Choi received a promotion to full professor on his first application; furthermore, he
received raises, like the rest of the department, in compliance with the collective bargaining
agreement between the Board and the faculty union. At the time he filed this suit, Choi was the
second highest paid professor in the POLS department, second only to Simpson, who started
working at the University over fifty years ago in 1967. Choi’s self-conducted analysis of net
raises in the department ignored raises for promotions and leadership positions, like the 10%
raise he received with his promotion. The Court finds that Choi has failed to adduce facts
sufficient to show he suffered a materially adverse employment action based his promotion
history and pay raises.
J.

Student Grades

Finally, Choi complains that Judd changed one of his student’s grades. Choi makes no
argument as to how this action changed the terms or conditions of his employment. Rather, this
action may rise to the level of an annoyance but the Court finds that Choi has not demonstrated
that it is a materially adverse employment action. Thus, the Court finds that Choi cannot base a
claim of discrimination of this action.
Because each incident of which Choi complains is either a benefit for which he was never
entitled, like the partner accommodation and counter offers, or a benefit he actually received,

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like the parental duties modification, sabbatical, research assistants, course assignments,
promotion and raises, or a mere inconvenience that did not affect the terms and conditions of his
job in any material way, like the exclusion from non-existent meetings, students not requesting
him as an advisor, Ph.D. program changes, and student grade alteration, the Court finds that Choi
did not suffer a materially adverse employment action. Nichols, 510 F.3d at 780 (“A materially
adverse employment action is something more disruptive than a mere inconvenience or an
alteration of job responsibilities.”). The Court, therefore, finds in favor of Defendants on their
motion for summary judgment on Choi’s discrimination claims in Counts II and IV.
III.

Retaliation (Count V)
Choi brings a retaliation claim against the Board pursuant to Title VII and against

McKenzie, Judd, and Simpson pursuant to § 1981. Title VII makes it unlawful for an employer
to retaliate against an employee because he has “made a charge, testified, assisted, or participated
in” a Title VII proceeding or investigation, which would include the charge of discrimination
Choi made to the EEOC. Burlington N. & Santa Fe R.R. Co. v. White, 548 U.S. 53, 56, 126 S.
Ct. 2405, 165 L. Ed. 2d 345 (2006) (citing 42 U.S.C. § 2000e–3(a)). To prevail on his retaliation
claim, Choi must show that “(1) he engaged in a statutorily protected activity, (2) he suffered a
materially adverse action by his employer, and (3) a causal connection exists between the two.”
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009). Choi’s retaliation claim fails for the
same reason as his discrimination claims: Choi cannot show a materially adverse action.
The standard for a materially adverse action in a retaliation context is more lenient than
in a discrimination context. See White, 548 U.S. at 56. Even so, “material adversity” must rise
to such a level that it would “dissuade[ ] a reasonable worker from making or supporting a
charge of discrimination.” See, e.g., Boss v. Castro, 816 F.3d 910, 919 (7th Cir. 2016) (unfair

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reprimands, performance improvement plans, or negative performance reviews unaccompanied
by tangible job consequences do not constitute adverse action); Bagwe v. Sedwick Claims Mgmt.
Servs., Inc., 811 F.3d 866, 889 (7th Cir. 2016) (performance improvement plan and the
company’s investigation did not constitute adverse action). Just as in the discrimination analysis,
nothing materially adverse happened to Choi. He requested a sabbatical and received it. He
sought modified duties and got them. He applied for a promotion and received it on his first
application. A changed grade, a less desirable employment offer to his fiancée, and the
University’s decision not to extend counter offers that it could not afford did not result in any
material harm to Choi, and therefore are not materially adverse. Sacramento v. City of Chicago,
No. 07 C 4267, 2010 WL 2740305, at *10 (N.D. Ill. July 12, 2010) (“An unfulfilled threat,
which results in no material harm, is not materially adverse.”) (citing Ajayi v. Aramark Bus.
Servs., 336 F.3d 520, 531 (7th Cir. 2003)).
Because Choi has not suffered a materially adverse action in the retaliation context either,
the Court finds in favor of Defendants on their motion for summary judgment on Choi’s
retaliation claims, Count V.
IV.

Hostile Work Environment (Counts I and III)
Choi brings a hostile work environment claim based on his national origin and race

against the Board pursuant to Title VII. He brings a similar claim based on his race against
McKenzie, Judd, and Simpson pursuant to § 1981. To establish a hostile work environment, a
plaintiff must provide evidence that: “(1) [ ]he was subject to unwelcome harassment; (2) the
harassment was based upon a protected characteristic; (3) ‘the harassment was severe and
pervasive so as to alter the conditions of the employee’s environment and create a hostile or
abusive working environment’; and (4) ‘there is a basis for employer liability.’” Atanus v. Perry,

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520 F.3d 662, 676 (7th Cir. 2008) (quoting Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036,
1043 (7th Cir. 2000)). The Court finds that Choi cannot show that the harassment was severe
and pervasive, or that the harassment was based upon a protected characteristic.
Determining whether the conduct rises to the level of severe and pervasive depends on a
number of factors, including “the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with the employee’s work performance.” Ezell v. Potter, 400 F.3d 1041,
1047 (7th Cir. 2005) (citing Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806–07 (7th Cir.
2000)). A plaintiff must establish that the work environment was both subjectively and
objectively offensive. Id. (citing Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003);
Hostetler, 218 F.3d at 807). Vague and conclusory allegations about hostile conditions, without
specific support in the record, are insufficient to survive summary judgment. Hoosier v.
Greenwood Hosp. Mgmt. LLC, 32 F. Supp. 3d 966, 979–80 (N.D. Ill. 2014).
Choi offers two quotes from Simpson and Judd that he claims are offensive: “Koreans are
good at math,” and “Koreans are stubborn and do not understand American culture of
compromise when dealing with their boss,” respectively. Doc. 53 at 9, 13. Such comments may
be rude and inappropriate; however, they are not so severe as to change the conditions of an
employee’s employment. Ezell, 400 F.3d at 1048 (finding that comments reflecting ignorant
stereotypes of older workers are not severe). Furthermore, two comments throughout the course
of Choi’s twelve-year employment at the University are not severe and pervasive enough to
survive a summary judgment motion. See Scruggs v. Garst Seed Co., 587 F.3d 832, 840–41 (7th
Cir. 2009) (finding that supervisor’s sporadic comments did not rise to the level of an objectively
hostile work environment).

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Choi also complains of the various instances analyzed above: department meetings,
research assistants, competitive counter-offers, and sabbatical leave. Even taken together under
the more lenient “totality of the circumstances” standard, none of these complaints affected Choi
in any materially adverse manner, and therefore, even combined, they still do not rise to a level
that is sufficiently severe and pervasive. Mason, 233 F.3d at 1044–45 (finding under the totality
of the circumstances approach, all instances of harassment by all parties are relevant to proving
that hostile environment is sufficiently severe and pervasive).
Furthermore, Choi does not argue that they are linked to his national origin or race. Choi
merely states he “could rationally consider himself at a disadvantage in relation to other coworkers by virtue of being Korean-American,” without asserting that any of these instances,
besides the two quotes for which this factor is self-evident, are based on his race. See Doc. 53 at
14. The vague and conclusory statement linking these complaints to Choi’s national origin or
race are insufficient to establish hostile conditions. See Hoosier, 32 F. Supp. 3d at 980.
Because the harassment was not severe and pervasive enough to rise to the level of a
hostile work environment, and the bulk of Choi’s harassment complaints were not linked to his
national origin or race, the Court finds in favor of Defendants on their motion for summary
judgment on Choi’s harassment claims in Counts I and III.
V.

Equal Protection (Count VI)
Finally, Choi brings a § 1983 equal protection claim against McKenzie and Judd. To

prevail on this claim, Choi must show that: (1) he had a constitutionally protected right; (2) he
was deprived of that right in violation of the Constitution; (3) Defendants intentionally caused
this deprivation; and (4) Defendants acted under color of state law. Sims v. Mulcahy, 902 F.2d
524, 538 (7th Cir. 1990) (citations omitted). Defendants argue that Choi cannot establish the

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second factor, that he was deprived of a constitutionally protected right in violation of the
Constitution. Choi does not respond and has therefore waived this claim. 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.”). Thus, the Court finds in favor of Defendants on this claim as well.
CONCLUSION
For the foregoing reasons, the Court grants Defendants’ motion for summary judgment
[47]. The Court enters judgment for Defendants and terminates this case.

Dated: April 3, 2019

______________________
SARA L. ELLIS
United States District Judge

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