Sharma v. Board of Trustees of the University of Illinois
Filing
236
MEMORANDUM Opinion and Order written by the Honorable Lindsay C. Jenkins on 9/29/2023. Mailed notice. (jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Suresh Sharma,
Plaintiff,
No. 17 CV 7378
v.
Judge Lindsay C. Jenkins
Board of Trustees of the University of
Illinois, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Suresh Sharma, a former administrative professional at the University of
Illinois at Chicago (“UIC”), brings this employment discrimination suit against the
Board of Trustees of the University of Illinois (the “Board”), Associate Dean of
Administration Todd Van Neck, and Dr. Benjamin Van Voorhees, at the time the
interim head of the pediatrics department at UIC’s College of Medicine (collectively,
“Defendants”). 1 Sharma brings (1) Title VII race and national-origin discrimination
claims against the Board, (2) an Americans with Disabilities Act (“ADA”) claim
against the Board, (3) an equal protection claim pursuant to 42 U.S.C. § 1983 against
all three Defendants, and (4) Illinois law claims for tortious interference and
intentional infliction of emotional distress (“IIED”) against Dr. Van Voorhees. [See
Dkt. 186 at 2.] Before the Court is Defendants’ motion for summary judgment. [Dkt.
194.] For the reasons stated below, that motion is granted.
This case has been pared down by the Court dismissing several claims in Sharma’s
second amended complaint and Sharma voluntarily dismissing others. [Dkt. 76, Dkt. 189.]
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1
I.
Background
This lawsuit centers around actions Defendants took regarding Sharma’s
employment at UIC, primarily requiring him to undergo a fitness for duty (“FFD”)
evaluation, placing him on paid administrative leave, and declining to renew his
appointment at UIC. [See Dkt. 195 at 1; Dkt. 213 at 5, 7.] The Court draws on the
parties’ Local Rule 56.1 filings to recount the facts. 2 In doing so, the Court notes which
material facts are in dispute and whether disputes are supported by admissible
evidence. See Weaver v. Speedway, LLC, 28 F.4th 816, 820 (7th Cir. 2022). As will
become clear, a recurring issue is whether certain statements are hearsay, out-ofcourt statements offered to prove the truth of the matter asserted. Fed. R. Evid.
801(c). Hearsay is inadmissible unless an exception to the hearsay rule applies, see
Fed. R. Evid. 801(d), 802–804, but an out-of-court statement is not hearsay if it is
offered for a purpose other than its truth, such as its effect on a listener, Torry v. City
of Chicago, 932 F.3d 579, 585 (7th Cir. 2019); Poullard v. McDonald, 829 F.3d 844,
858 n.4 (7th Cir. 2016). This distinction matters because “inadmissible hearsay
evidence does not create a factual dispute at summary judgment.” Wash. Cnty. Water
Co. v. City of Sparta, 77 F.4th 519, 529 (7th Cir. 2023) (citation omitted).
A.
Sharma’s Employment at UIC
Sharma, who is an immigrant and of Indian descent, began working at UIC in
2005. [Dkt. 214 ¶ 1; see Dkt. 213 at 1.] Chief of Pediatrics Dr. Usha Raj—also of Indian
The evidence here includes some sensitive information, such as the content of medical
records, which have been filed under seal, with redacted versions filed publicly. For
simplicity, the Court generally cites the public versions, even when the cited material has
been redacted. The parties may consult the sealed versions to see the specific material cited.
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descent—brought him into the College of Medicine in 2008; in 2011, Sharma became
Director of Administrative Operations and began working with Dr. Van Voorhees.
[Dkt. 214 ¶¶ 1–3; Dkt. 217 ¶ 1.] Dr. Raj hired Sharma to “assist her in creating fiscal
controls to ensure proper billing and income and to monitor expenditures” in the
pediatrics department, which previously lacked controls on spending. [Dkt. 217 ¶ 1.]
“Sharma was required to ensure that all funds expended … were correctly spent and
properly accounted to the correct funding source.” [Id.] According to Sharma, he
discovered “a long-standing error in fund accounting,” and in January 2015, “UIC
agreed that certain insurance write-offs had been mischaracterized as ‘bad debt’ and
changed the way they were coded.” [Id. ¶¶ 2–3.]3 Sharma believes that exposing the
bad debt issue upset Associate Dean Van Neck because it made him look bad. [Id.]
Similarly, Sharma thinks he crossed Dr. Van Voorhees by insisting on conformity
with financial policies that Dr. Van Voorhees did not want to abide by. [Id. ¶¶ 7–8.]
In mid-February 2015, Dr. Raj was told to step down as Chief of Pediatrics.
[See Dkt. 214 ¶ 3; Dkt. 217 ¶ 6.] 4 She later filed an Equal Employment Opportunity
Defendants dispute that UIC had mischaracterized the debt [Dkt. 217 ¶ 3], but this
distinction is not material.
4
According to Sharma, Dr. Raj was forced to step down as a result of complaints about
her management style made by high-level UIC employees, including Dr. Van Voorhees, which
were relayed to Dr. Raj several months prior to her termination by UIC College of Medicine
Dean Dimitri Azar. [Dkt. 214 ¶ 3; Dkt. 217 ¶¶ 4–5; Raj Dep. at 105–09, Dkt. 234-2 at A463–
64.] Defendants argue that Dean Azar’s statements are inadmissible hearsay [Dkt. 217 ¶ 5],
but the Court disagrees. Statements made by an opposing party’s agent about matters within
the scope of the agency agreement are not hearsay. Fed. R. Evid. 801(d)(2)(D); Young v. James
Green Mgmt., Inc., 327 F.3d 616, 622 (7th Cir. 2003). It is reasonable to infer that Dean Azar’s
role included giving feedback to department heads within the College of Medicine, so for
present purposes, this evidence is admissible. By contrast, the Court disregards Sharma’s
separate allegation that Dr. Raj was “targeted” by white faculty members because it lacks
evidentiary support. [See Dkt. 217 ¶ 4.]
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Commission (“EEOC”) charge, alleging discrimination based on gender, race, and
national origin and ancestry. [Dkt. 233-2 at A927–32.]5 Dr. Van Voorhees became
interim head of the department and inherited what he described as a “disfunction[al]”
environment, including concerns by faculty “about how the department was being run
and organized and the tone.” [Van Voorhees Dep. at 38, Dkt. 234-2 at A557; Dkt. 214
¶¶ 3, 13.]6 To address these concerns, he brought in two consultants from other UIC
departments, Juanita LeCrone and Meg Oberholtzer. [Dkt. 214 ¶ 14.]
B.
Reports of Sharma’s Behavior
During the spring of 2015, complaints from UIC employees about threatening
and inappropriate behavior by Sharma began to come to the attention of Dr. Van
Voorhees and the consultants. [Dkt. 214 ¶ 16.] In April, they created a “master log”
to collect these complaints, supporting documentation, and their comments; Sharma
disputes the accuracy of the log, but he acknowledges that the information therein
was compiled by Dr. Van Voorhees, LeCrone, and Oberholtzer. [Id. ¶¶ 19–20; Dkt.
234-2 at A656–841 (several iterations of the master log).] The Court details these
complaints and discusses Sharma’s disputes about them.
1.
Complaints via Fanti
Marci Fanti, the director of human resources for the College of Medicine,
testified that employees made complaints about Sharma in 2014 and early 2015; that
she did not take contemporaneous notes about the complaints; and that she compiled
Sharma represents that Dr. Raj’s case settled, but no record evidence supports this,
so the Court will disregard it. [See Dkt. 217 ¶ 6.]
6
Sharma objected to Defendants’ paraphrasing Dr. Van Voorhes’s testimony. [Dkt. 214
¶ 13.] The Court has quoted him directly.
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4
a summary document of consistent information across multiple complaints. [Dkt. 214
¶ 10; Fanti Dep. at 43, Dkt. 234-1 at A222; Dkt. 234-2 at A880–91.] Fanti testified
that these individuals made the following complaints about Sharma’s behavior:
•
•
•
•
•
•
•
•
Christina Roberts: “[H]ostile work environment. Tones, berating, belittling,
just a general abuse of authority.” [Fanti Dep. at 34, Dkt. 234-1 at A220.]
Jessica Watkins: “Similar to those of Christina Roberts,” which she
summarized in an email afterward. [Id. at 36–37, Dkt. 234-1 at A220–21.]
Laura Ravens: “Her complaints and concerns were consistent with previous
meetings,” and she provided summary documentation. [Id. at 40, Dkt. 2341 at A221.]
Jeffrey Dodler: “Belittling, berating, being yelled at.” [Id. at 41, Dkt. 234-1
at A222.]
Kali Ludwig and Monika Marko: Fanti stated that they complained but was
not asked about specifics. [Id. at 41–42, Dkt. 234-1 at A222.]
Ann Lindner: Formal complaint about “[t]he hostile work environment and
the … way she was being treated.” [Id. at 43–44, Dkt. 234-1 at A222.]
Nivid Thakar: Fanti said he made a formal complaint, but she was not
asked about specifics. [Id. at 50, Dkt. 234-1 at A224.]
Piyush Hargunani: Formal complaint about Sharma “raising his voice,
yelling at individuals in front of other people, managing meetings … [like
a] dictatorship,” and “interfering or impeding some business processes for
particular individuals.” [Id. at 50–51, Dkt. 234-1 at A224.]
Fanti testified that she attempted to meet with Dr. Raj, who was then Sharma’s
supervisor, about the complaints from Wakins and Ravens. [Id. at 37–40, Dkt. 234-1
at A221.] After Dr. Van Voorhees became interim head of pediatrics, Fanti relayed
the complaints she had received during 2014 and early 2015 to him. [Dkt. 214 ¶ 16.]
Sharma tries to dispute all these allegations, but he can only genuinely dispute
some of them. There is a genuine dispute about the substance of the complaints—
that is, whether Sharma said and did what the reports say. [See id. ¶ 10.] There is
also a genuine dispute as to whether Fanti contacted Dr. Raj about the complaints.
Dr. Raj testified that she does not remember Fanti reaching out to her or that ever
5
receiving any complaint about Sharma. [Raj Dep. at 90–95; Dkt. 234-2 at A460–61.]
While not remembering whether something happened is not the same as
remembering that it did not happen, a reasonable jury could credit Dr. Raj’s account,
so the Court assumes that Fanti did not contact Dr. Raj for purposes of summary
judgment.
But Sharma lacks admissible evidence to dispute Fanti’s testimony that these
individuals made complaints to her or that she relayed those complaints to Dr. Van
Voorhees. Sharma points out that Fanti lacks contemporaneous notes or other
documentary evidence corroborating the existence of the complaints and that some of
her documentation “contains numerous internal inconsistencies, no names, no dates,
and only vague references to complaints.” [Dkt. 214 ¶¶ 10, 16.] But while supporting
documentation would bolster the credibility of Fanti’s testimony, the lack of such
material does not prove she is lying, and simply calling a witness a liar does not defeat
summary judgment. Igasaki v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 956 (7th
Cir. 2021) (“Igasaki essentially accuses Forester of lying …, yet he fails to provide any
evidence. Conclusory allegations like these alone cannot defeat a motion for summary
judgment.” (cleaned up)). Thus, while the substance of the complaints is disputed,
there is no genuine dispute as to the fact that Fanti received complaints about
Sharma’s behavior during 2014 and early 2015 and passed those complaints along to
Dr. Van Vorhees. See Weaver, 28 F.4th at 820.
2.
Lindner’s Complaints
Ann Lindner, an assistant who worked with Sharma, made several reports
about Sharma’s behavior. She testified that she complained to Fanti by phone when
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she believed Sharma “had violated federal law by attacking me on race, gender
religion.” [Lindner Dep. at 37–38, Dkt. 234-1 at A355–56.] Lindner recounted an
incident in which a white Christian woman nurse self-reported a HIPAA violation,
and Lindner typed a warning letter dictated by Sharma. Sharma “became very angry
because somehow I had misunderstood what he wanted me to do,” and then “he
started yelling about how white women just kept making messes and other people
had to clean up after them and didn’t our religion teach us a proper work ethic.” [Id.
at 38–39, Dkt. 234-1 at A356.]
Lindner also testified that after Sharma was put on leave, LeCrone suggested
she “write out in more detail to explain some of the things that had gone on when I
was working directly for Suresh Sharma.” [Id. at 22, Dkt. 234-1 at A352; see Dkt. 214
¶ 15.] In a memo dated July 21, 2015 and addressed to Fanti and LeCrone, Lindner
reported an incident involving behavior she believed was unethical. She stated that
Sharma was aware that her grandchild had recently been born and he wanted to
arrange for her to travel to New York City to visit her grandchild:
It was vaguely put in the context of ‘professional development’ … he has
been encouraging his staff to get more training to enhance skills and/or
shore up areas in which they could use improvement. But he wasn’t
requiring me to officially enroll in a workshop, seminar, or class. It
would be fine if I just visited a children’s hospital or attended some kind
of event that was even remotely related to children. He clearly
emphasized that his real purpose as to provide me with a round-trip
airline ticket to New York City, and pay for my lodging and meals.
Furthermore he told me I could have at least a week of or even more of
time away from the office without using my vacation time or personal
days.
[Dkt. 234-1 at A382 (ellipsis in original).] Lindner believed Sharma’s proposal to be
an “abuse of resources (both expense and time)” and “an encouragement to
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misappropriate University resources for a non-business use.” [Id. at A382.] She also
relayed an incident in which Sharma gave her and another employee gifts that she
suspected to have come from a batch of toys donated for needy children. [Id. at A383.]
In a second memo to Fanti and LeCrone, dated July 22, 2015, Lindner gave a
fuller account of her view of Sharma’s behavior. She referred to a report she
previously made to Fanti in which she “believed Mr. Sharma had broken the law
regarding discrimination on the basis of race, religion, sex, and age”; she added:
I believe the University has policies to prevent, correct, and discipline
incidents of harassment, including emotional harassment, when the
educational and/or work experience is being compromised …. I
furthermore feel a duty to make you aware of abuses of power and
authority that have been entrusted by the University.
[Id. at A384.] Lindner stated that “Mr. Sharma was very open about physical and
emotional ailments,” and “[h]e many times stated directly that he was stressed, upset,
angry, etc.” [Id. at A385.] Lindner stated that “there were never any physical threats
against me. … The most upsetting part of the relationship for me was anger. His body
language and facial demeanor expressed deep rage, and he yelled loudly and on a
regular basis.” [Id.] She acknowledged that
many of the situations I’m about to describe might be given a more
positive spin. However it was the tone that made me uncomfortable. …
I felt that his goal was to manipulate persons and/or situations in a
vindictive way. I often felt threatened myself and/or that he would use
me to threaten others in ways that were irrelevant to job performance.
I was very fearful of consequences or of unpleasant situations … being
created that were not based on any reality that I could perceive.
[Id.] She then detailed specific, recurring concerns about Sharma’s behavior, such as:
•
Sharma “would disclose embarrassing information in meeting[s] that didn’t
have anything to do with the topic being discussed (e.g., a colleague’s low
pay, the source of my salary).”
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•
•
•
•
He “had strong reactions to any real or imagined security breach,” which
“[s]ometimes … seemed based on gender or race. As a woman, he forbid me
to stay in the building on my own. He was very concerned about me living
in the city when there were riots in another town ….”
Sharma “would often single out someone to ‘go after.’”
“Once he took of[f] his shoe and sock and showed me his bare foot because
he was concerned about, as I recall, an in-grown toenail.”
“A colleague was called to a [work-related] meeting that I also attended …
but somehow the focus was shifted … to his [immigration] status.” In regard
to that employee’s immigration status, “Mr. Sharma would tell me: ‘They
need to pray to determine whether its’ God[’s] will that they should stay in
America or go back to their original country.’”
[Id. at A385–87.]
Sharma disputes the substance of Lindner’s testimony about him [see Dkt. 214
¶ 15], and as above, the Court will assume for present purposes that Sharma did not
engage in any of the behavior he denies. But Sharma lacks any evidence to dispute
that Lindner complained to Fanti, wrote the memos, or presented them to Fanti and
LeCrone. He points out that Lindner’s written memos do not recount what he
allegedly said about white Christian women [id.], but Lindner’s July 22, 2015 does
refer that incident [Dkt. 234-1 at A384]. And in any event, not mentioning a specific
incident in a written report does not necessarily prove it did not happen. See Igasaki,
988 F.3d at 956. 7 Therefore, there is no genuine dispute as to whether Lindner
In her deposition, Lindner testified that she regularly heard Sharma using profanity,
but she did not report that behavior to Fanti or include them in her memos. [Lindner Dep. at
98–105, Dkt. 234-1 at A371–73.] Sharma denies cursing, so for summary judgment purposes,
the Court disregards Lindner’s testimony about Sharma’s use of profanity.
There is one conspicuous absence in Lindner’s deposition testimony and her memos,
however. Dr. Van Voorhees testified that on one occasion he found Lindner crying because
Sharma had yelled at her. [Dkt. 214 ¶ 25.] Sharma denies doing so, and Lindner testified
that the only time she “complain[ed] to anybody about Mr. Sharma yelling and cursing” was
in her July 22, 2015 memo. [Lindner Dep. at 105–06, Dkt. 234-1 at A372–73.] The memos
lack any mention of Sharma yelling at her and making her cry. From this evidence, a jury
could reasonably infer that Sharma did not cause Lindner to cry, so for purposes of ruling on
Defendants’ motion, the Court disregards this evidence.
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complained to Fanti about Sharma’s comments about the nurse or whether she sent
memos to Fanti and LeCrone about Sharma’s conduct.
3.
Hargunani’s Complaints
Piyush Hargunani, a project coordinator, testified that he met with LeCrone
around July 14, 2015; he reported complaints about Sharma’s behavior, including
threats of violence made several years earlier; and LeCrone provided him with a onepage document after the meeting, which he used to draft a three-page statement that
he signed and submitted to Fanti. [Dkt. 214 ¶¶ 28, 32–34; Hargunani Dep. at 25–26,
95–104, Dkt. 234-1 at A272–73, A290–92; Dkt. 233-1 at A309–10 (one-page
document); Dkt. 234-1 at A306–08 (three-page document).] The document Hargunani
prepared stated, in part:
I … report administratively to Suresh Sharma. In February 2015, when
Dr. Van Voorhees became Interim Head of Department of Pediatrics, I
noticed a change in the way Suresh managed the staff. … Suresh has on
multiple occasions stopped me to work on [projects Dr. Van Voorhees
assigned me to] and stated he has the ultimate authority about my
position, that he has the power to terminate my position.
Suresh had recently asked me to write damaging emails about Dr. Van
Voorhees and other employees …; I have refused to write these emails.
In retaliation for my refusal, Suresh is now threatening to demote me
and limiting my job responsibilities …. In the past on numerous
occasions he has mentioned that if I do not comply, he has the power to
stop renewal of my H1B visa after November 2017. …
I feel that my job and my physical well-being is threatened by Suresh
Sharma; additionally, Mr. Sharma knows my personal home address.
He has called my cell phone multiple times over the weekend and
harassed me at length related to non-work issues. …
Few years back, Suresh was delaying my job appointment and visa
process, and so I asked Dr. Usha Raj … to intervene. When Suresh
Sharma came to know about it he threatened me of physical harm
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(cutting into pieces) if I complain to Dr. Raj about him again (in front of
other employee). …
Suresh continued to use my dependency on visa sponsorship as a means
to control me in the office. … Historically, any time my reappointment
approached, Suresh enforced additional workload on me and reminded
me that it is very easy not to reappoint these types of visas.
[Dkt. 234-1 at A306–08; see Hargunani Dep. at 125, Dkt. 234-1 at A297 (“[Sharma]
just came out furious from Dr. Raj’s office. He started shouting like a mad person,
like, pointing fingers. He was all red. His eyes were all red. He said in Hindi (foreign
language spoken). That means cut you into pieces and bury in the grave.”).]
Again, Sharma denies the substance of Hargunani’s reports, and he notes
ambiguity as to whether LeCrone or Dr. Van Voorhees reached out to Hargunani
[Dkt. 214 ¶ 28] and inconsistency between Hargunani’s testimony that Fanti drafted
the shorter document and an email from Fanti saying that she and Hargunani
“draft[ed] th[e] document together” [id. ¶¶ 33–34; Dkt. 234-2 at A651]. But Sharma
has produced no evidence contradicting Hargunani’s testimony that he drafted and
sent the three-page document to Fanti and that Dr. Van Voorhees was aware of the
substance of Hargunani’s reports. Thus, while there is a genuine dispute about the
truth of Hargunani’s allegations, there is no dispute that he made these complaints.
4.
Thakar’s Complaints
Nivid Thakar, a human resources employee in the pediatrics department,
testified that he contacted LeCrone with concerns about Sharma’s behavior and later
met with Fanti regarding his concerns. [Dkt. 214 ¶¶ 38–39.] Sharma’s alleged
behavior included: saying he would “f*** the person so hard, they’ll feel it for the rest
of their lives” about someone he was upset with; threatening in Hindi to cut
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Hargunani into pieces and bury him; attempting to and threatening to interfere with
Hargunani’s visa; and using an inappropriate tone and berating communication style.
[Id. ¶ 39.] Thakar explained that he did not report Sharma’s behavior sooner because
he feared reprisal. [Id. ¶ 40.] Thakar also submitted a signed statement detailing
Sharma’s alleged behavior. [Dkt. 233-1 at A510–12.] As before, Sharma denies the
substance of these allegations but produces no evidence to dispute the fact that
Thakar made the reports he testified about. [See Dkt. 214 ¶ 39 (specifically denying
every allegation but citing only his own deposition and declaration, except for one
citation to Dr. Raj’s deposition for the proposition that she received no reports of
Sharma causing a hostile work environment).] 8
5.
Other Complaints Captured in the Master Log
The master log contains other complaints, including:
•
•
•
Jordan Henry, Dr. Van Voorhees’s assistant, reported that Sharma said,
“Do these people not know the power I have? I can take these people out at
any time. [LeCrone] said my employees said bad things about me? I demand
to know who so I can take action.” [Id. ¶ 22; Dkt. 234-2 at A667.]
Three individuals including Dr. Diego Izze Ludlow contacted Dr. Van
Voorhees regarding Sharma’s behavior in a meeting. The master log
contains a message attributed to Dr. Ludlow: “About half of the meeting
was [Sharma] aggressively expressing the importance of his office, which
no one was challenging. … His demeanor and way to interact with faculty
is concerning ….” [Dkt. 214 ¶ 26; Dkt. 234-2 at A761–62.]
An entry attributes to Dr. Mary Lou Schmidt the statement that “Laura
[Ravens] brought into private meeting with [Sharma] with two [w]itnesses.
Very intimidated.” [Dkt. 214 ¶ 27; Dkt. 234-2 at A763.]
Sharma asserts that Thakar was terminated in 2019 for falsifying overtime records.
[Dkt. 217 ¶ 25.] Thakar testified that after he was charged with overreporting overtime
hours, he came to an agreement with UIC that he would resign. [Thakar Dep. at 21–23, Dkt.
234-2 at A475–76.] Whatever the circumstances, Thakar’s departure from UIC is irrelevant
here because Sharma has pointed to no evidence showing that any Defendant knew about
Thakar’s overtime practices when it was making decisions with respect to Sharma.
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Additionally, Dr. Van Voorhees testified that he counseled Sharma regularly
regarding his behavior, and there are entries by Dr. Van Voorhees in the master log
referring to what he considered to be counseling. [Dkt. 214 ¶ 17.]
Sharma denies the truth of these entries, but he acknowledges that they
appear in the log. He also denies that Dr. Van Voorhees counseled him and notes that
“there is not a single email in the log from Dr. Van Voorhees to Plaintiff that can be
described as coaching.” [Id.] While the log reflects that Dr. Van Voorhees described
his own counseling efforts, it contains no communication between Sharma and Van
Voorhees that expressly discusses counseling. Without such evidence, there is a
genuine dispute as to whether Dr. Van Voorhees counseled Sharma.
*
*
*
In sum, while the truth of the complaints about Sharma are hotly disputed,
Sharma has largely failed to raise a genuine dispute as to whether these complaints
were made or conveyed to Dr. Van Voorhees or the individuals working with him on
Sharma’s case. Thus, as will be discussed below, only to the extent that the accuracy
of the complaints—as opposed to their existence—is material will a trial be necessary.
C.
Sharma’s Emails
Meanwhile, on May 3, 2015, Sharma sent Dr. Van Voorhees an email and
copied Nivid Thakar. [Dkt. 214 ¶ 23.] The email stated:
Dear Dr. Voorhees,
As already discussed with you several times, I am stressed out and feel
harassed because of recent instances happening in the department for
the past few weeks. Inappropriate behavior and intimidating, abusive
work environment is constantly being built in the form of interpersonal
meetings and email exchange by the newly appointed consultants. As
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you well know, I have given my valuable 7 years to the Department of
Pediatrics serving with integrity, objectivity, and distinction. Whenever,
I take a task, I lay an objective to be completed in a specified time frame
and am proud to say that I accomplish it with excellence. I respect people
around me and expect the same. In the past few weeks I am very
disturbed the way things are being thrown at me.
Meg Oberholtzer and Juanita Lecrone were introduced to the
department by you as consultants to work closely with me/section chiefs
and provide a summary of the report as an addition to overall
department plan. I do not see things happening in that direction. From
the very beginning I have tried my best to cooperate with them even
though till date I have not understood their detailed scope of work.
Rather, they do not miss a single opportunity to let me down and
portraying a blame game (in the form of emails and attacking in
personal interaction) rather than working as a team and in a spirit of
true enterprise. I am too stressed and feel mentally disturbed by these
games happening around me. I would like a third party to intervene to
come to a resolution. Thereby, I request Mr. Nivid Thakar to initiate a
confidential meeting with Office for Access and Equity [(“OAE”)] to
resolve the interpersonal conflict and communication differences (cc’ing
Ms. Caryn Bills from OAE). I strongly feel that the intervention of the
third party will be helpful.
[Dkt. 233-1 at A649–50.] Sharma points to no evidence that OAE offers confidential
third-party intervention of the type he requested. [Cf. Dkt. 217 ¶¶ 14–15, 20.]
On May 8, 2015, Sharma emailed Dr. Van Voorhees about an email Dr. Van
Voorhees had sent several UIC employees stating that they had “received the budget
from Nivid [Thakar]” and signing on behalf of “Suresh [Sharma] (Administration).”
[Dkt. 234-2 at A759–61.] Sharma’s email sought to
clarify two things. I spent days/nights preparing the budget and sent it.
It is not Nivid who sent it. Also, in the signatures, I see ‘Suresh
(Administration)’. Can you clarify who is/has been taking care of
Finance of all the divisions/department for the past seven years? I am
not comfortable with this and feel stressed. There may be a
misunderstanding on my part so want to be clear. As it is, I am going
through a lot with my son being in the hospital.
[Id.]
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Sharma does not dispute that he sent these emails, but he argues that
Defendants have mischaracterized them and their context. [Dkt. 214 ¶¶ 23–24.]
Sharma is not a native English speaker, and he says that “when he used the phrase
‘mentally disturbed’ he meant to convey that he was stressed and anxious” [Dkt. 217
¶ 20], and that he made “a poor choice of words” [Sharma Decl. ¶ 16, Dkt. 233-2 at
A920]. As Defendants note, Sharma’s explanations about the meaning of his emails
are not competent evidence about how his words were understood at the time, and he
points to no evidence that he clarified his words’ meaning contemporaneously. [Dkt.
217 ¶ 20.]
D.
The FFD and Psychological Evaluations
In mid-July 2015, UIC employees including Dr. Van Voorhees, Van Ness, and
Fanti met regarding the allegations about Sharma. [Dkt. 214 ¶¶ 42–44.] Some details
about the meeting or meetings are disputed, such as who was present and whether
the meetings were conducted by the Faculty Staff Response Team or Threat
Assessment Team. [Id.; see id. ¶¶ 5–6.] These disputes are largely immaterial, and to
the extent that there is a genuine dispute about who made decisions regarding
Sharma, for summary judgment purposes, the Court accepts Sharma’s account about
decision-making or attributes decisions to all Defendants. Sharma’s position is that
Dr. Van Voorhees made the ultimate decision to place Sharma on paid administrative
leave and require him to undergo a FFD evaluation. [Dkt. 214 ¶¶ 42–44.]
The parties also dispute many of the facts regarding the FFD evaluation, and
the Court adopts Sharma’s version of the facts for present purposes. On July 17, 2015,
Sharma says he was ordered to leave a budget meeting by Dr. Van Voorhees and
15
escorted to UIC’s University Health Services for an FFD evaluation. [Sharma Dep. at
186–92, Dkt. 234-1 at A49–50.] When Sharma arrived, he met Dr. David Marder and
Trinette Zahakaylo, an advanced practice nurse. [Id. at 192, Dkt. 234-1 at A50.] Dr.
Van Voorhees rudely demanded Sharma’s keys and badge, then left him with Dr.
Marder and Zahakaylo for an FFD evaluation. [Id. at 192–93, Dkt. 234-1 at A50; Dkt.
214 ¶ 52.] Sharma attended further FFD appointments on July 21, July 30, August
20, and August 26 [Dkt. 214 ¶ 50; Dkt. 200 at A629–38.] Zahakaylo’s notes from the
first three sessions indicate that Sharma might need to complete a forensic
psychological evaluation, and notes from every session state that the plan includes
Sharma remaining off duty for the time being. [Dkt. 200 at A629–38.]
Dr. Van Voorhees directed Sharma to attend a forensic psychological
examination with Dr. Alan Friedman; because Sharma was on paid leave, if he did
not comply, he could be terminated. [Dkt. 214 ¶ 53.] Sharma met with Dr. Friedman
on August 10, 2015 and underwent two psychological tests, and they met again on
August 18. [Id. ¶ 54; Dkt. 201 at A903.] Dr. Friedman determined that, while Sharma
scored in the normal ranges on both tests, his answers indicated defensiveness rather
than honesty, so the test results were invalid. His report stated, in part:
It should be noted that during both interviews with Mr. Sharma, he
appeared to be defensive and manifested rapid and pressured speech.
He appeared to be agitated and was overly verbose. He appeared
indignant for being referred for the fitness for duty evaluation, and
appeared to lack any insight, whatsoever, regarding how he might be
affecting others with the various outbursts that were related to him ….
Mr. Sharma completed two psychological tests, both of which … [are]
designed to detect whether the test-taker is answering the items in a
defensive or open and honest manner. Both tests were invalid, based
upon Mr. Sharma’s high level of defensiveness in answering the items.
16
… [One test] produced an extremely elevated defensiveness index, based
upon his approach to project a positive impression. … As a result of his
high level of defensiveness, all of his clinical scales were completely
suppressed, indicating that his profile was within the normal limit
range. However, based upon his high level of defensiveness, this test
cannot be considered valid for interpretation.
… Very similar[ly,] … Mr. Sharma also produced an invalid profile [on
the second test]. He grossly elevated the validity scales, suggesting that
he was highly defensive. He endorsed 13 out of the 15 items on the Lie
Scale, which invalidates the test. The Lie Scale consists of items that
reflect minor moral faults to which most people admit[,] … suggest[ing]
that Mr. Sharma approached the test with an intense need to present a
good front, and to deny having any type of personality flaw or lack of
integrity. His score suggests an intentional effort to misrepresent
himself and … his test-taking approach distorted the [test] results. Mr.
Sharma also elevated another … scale …, indicating that Mr. Sharma
was trying to present himself as having a good psychological adjustment
and mental health, despite the stress that he is obviously experiencing
with his present employer and the stress of a fitness for duty evaluation.
…
While he completed the inventories, he did not complete them in a
cooperative and honest fashion, rendering it impossible to determine the
exact nature of any type of disability, if one is present.
Because Mr. Sharma did not completely cooperate with this
examination, it is impossible to render a finding of his being fit for duty
at this time.
[Dkt. 201 at A908–10.] Sharma disputes the substance of Dr. Friedman’s findings,
but he admits that Dr. Friedman made those findings. [Dkt. 214 ¶¶ 55–59.]
Dr. Marder reviewed Dr. Friedman’s report and on September 15, 2015 sent
an email stating:
It appears that Mr. Sharma was not forthright in his answers and may
have deliberately lied though he had signed an agreement … that he
would be truthful in his responses. … As a result I am also unable to
find him fit for duty and have terminated future meetings with him
since he has insisted that he only told the truth throughout the entire
evaluation.”
17
[Dkt. 200 at A640.] Sharma acknowledges that Dr. Marder made this finding. [Dkt.
214 ¶ 60.]
E.
Sharma’s Non-Reappointment
At UIC, academic professionals like Sharma are appointed for a period of time,
up to one year, and are entitled to notice—12 months in Sharma’s case—in advance
of non-reappointment. [Id. ¶¶ 61–62, 64–65.] In September 2015, Dr. Van Voorhees
and Daniel Harper, a human resources employee, met with Sharma to propose a
separation agreement, which Sharma declined. [Dkt. 217 ¶ 36.] 9 On June 29, 2016,
Dr. Van Voorhees and Van Neck gave Sharma a notice of non-reappointment, and his
employment ended a year later. [Dkt. 214 ¶ 66.]
F.
The 3% Raise
Separate from the sequence of events surrounding Sharma’s paid leave, FFD
evaluation, and non-reappointment, Sharma alleges that he should have received a
higher raise in 2014 than he did. [Id. ¶ 67.] Dr. Raj, then Chief of Pediatrics,
recommended Sharma receive a 7% raise, but he received a 3% raise instead. The
parties dispute who decided Sharma would receive this raise; the Court adopts
Sharma’s position, which is that Van Neck approved the raise. [Id. ¶¶ 68–70.]
II.
Legal Standard
Summary judgment is proper where “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 323
The parties dispute whether this separation agreement would have truncated
Sharma’s notice rights [Dkt. 217 ¶ 36], but this dispute is immaterial.
9
18
(1986). A genuine issue of material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also Birch|Rea Partners, Inc. v. Regent
Bank, 27 F.4th 1245, 1249 (7th Cir. 2022). The Court “must construe all facts and
draw all reasonable inferences in the light most favorable to the nonmoving party.”
Majors v. Gen. Elec. Co., 714 F.3d 527, 532 (7th Cir. 2013) (citation omitted).
III.
Analysis
Sharma’s surviving claims are for: (1) race and national-origin discrimination
in violation of Title VII, (2) disability discrimination in violation of the ADA, (3) an
equal protection violation pursuant to 42 U.S.C. § 1983, and (4) tortious interference
and IIED under Illinois law. The Court considers each in turn.
A.
Title VII
The Court follows the parties’ lead in analyzing Sharma’s Title VII claims for
race and national-origin discrimination together. [See Dkt. 195 at 6; Dkt. 213 at 8.] 10
Title VII of the Civil Rights Act of 1964 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. § 2000e-2(a)(1); Runkel v. City of Springfield, 51 F.4th 736, 742 (7th Cir.
2022). Sharma will survive summary judgment if “the evidence would permit a
Sharma brings these claims against the Board only, but the relevant actions were
taken by individuals. The Board is entitled to summary judgment even if all the relevant
individuals’ conduct is attributed to it, so the Court refers to individuals’ conduct without
attempting to precisely delineate which conduct is attributable to the Board.
10
19
reasonable factfinder to conclude that [his] race [or national origin] caused the
discharge or other adverse employment action.” Wince v. CBRE, Inc., 66 F.4th 1033,
1040 (7th Cir. 2023) (cleaned up).
1.
Analytical Framework
A Title VII plaintiff may either “prove discrimination in a holistic fashion”
under Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016), or rely on the
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework,
“which gives the plaintiff the initial burden to establish a prima facie case of
discrimination, after which the burden shifts to the defendant to provide a legitimate
justification, before finally shifting back to the plaintiff to establish that such
justification was pretextual.” Wince, 66 F.4th at 1040 (cleaned up). Under the holistic
approach, the Court asks whether, looking at the record as a whole, “a reasonable
jury could conclude that the plaintiff suffered the adverse employment action because
of his membership in a protected class.” Reives v. Ill. State Police, 29 F.4th 887, 892
(7th Cir. 2022) (citation omitted).
It is unclear whether Sharma wishes to proceed under both methods or only
the holistic method. [Compare Dkt. 213 at 8–9 (noting that he need not use the
McDonnell Douglas framework), with id. at 9–17 (discussing the McDonnell Douglas
analytical steps).] Either way, the critical question is pretext. See Brooks v. Avancez,
39 F.4th 424, 435 (7th Cir. 2022) (stating, in the analogous Age Discrimination in
Employment Act context: “[I]t is not always necessary to march through th[e] entire
[McDonnell Douglas] process if a single issue proves to be dispositive. Here, as is often
true, that issue is pretext or the lack thereof.” (cleaned up)).
20
Pretext is often a key issue in the holistic approach, even though it is not a
formal part of the analysis as it is in McDonnell Douglas. 11 If an employer articulates
a nondiscriminatory basis for an adverse employment action, it is entitled to
summary judgment unless there is a genuine dispute as to whether that reason was
pretextual. See Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 738 (7th Cir. 2013) (“[I]f
there is no evidence of pretext, then [the] non-discriminatory justifications for firing
[the plaintiff] must be believed, which necessarily precludes liability under Title VII.”
(citation omitted)). Further, “a showing of pretext alone is not enough; the plaintiff
must also show that the explanations are a pretext for the prohibited animus.”
Chatman v. Bd. of Educ., 5 F.4th 738, 747 (7th Cir. 2021) (cleaned up); see also Brown
v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1105–06 (7th Cir. 2012) (explaining
that evidence of bias does not support an inference of unlawful discrimination without
evidence of a discriminatory motive).
The relevant question regarding pretext “is not whether the employer’s stated
reason was inaccurate or unfair, but whether the employer honestly believed the
reason it has offered for the adverse action.” Liu v. Cook County, 817 F.3d 307, 316
(7th Cir. 2016) (cleaned up); see Chatman, 5 F.4th at 746 (“[P]retext means a lie,
specifically a phony reason for some action.” (cleaned up)). A plaintiff can prove
pretext in several ways, including “by identifying such weaknesses, implausibilities,
Sharma faults Defendants for “paying lip service to the Ortiz holding” but “rely[ing]
on nothing but pre-Ortiz holdings to make their pretext argument.” [Dkt. 213 at 14.] He is
correct that Ortiz clarified that “all evidence belongs in a single pile and must be evaluated
as a whole,” 834 F.3d at 766, but he does not explain why pre-Ortiz pretext cases should be
disregarded; indeed, the Seventh Circuit continues to rely on them, see, e.g., Parker v. Brooks
Life Sci., Inc., 39 F.4th 931, 937–38 (7th Cir. 2022).
11
21
inconsistencies, or contradictions in a stated reason that a reasonable trier of fact
could find it unworthy of credence.” Liu, 817 F.3d at 316 (cleaned up). But a plaintiff
cannot survive summary judgment merely by raising a dispute as to the accuracy of
the reasoning behind an adverse employment action—there must be evidence from
which a jury could conclude that the employer acted with an illegal discriminatory
motive. See Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2016) (“We do not sit as a kind
of super-personnel department weighing the prudence of employment decisions made
by firms charged with employment discrimination.” (cleaned up)).
2.
Analysis
The Court begins and ends with pretext, which is dispositive here. Sharma was
subjected to an adverse employment action, the 2016 notice of non-reappointment.
[Dkt. 213 at 10–11; see Dkt. 218 at 6 (not contesting this point).] Defendants offer
several arguments as to why Van Neck and Dr. Van Voorhees’s decision not to
reappoint Sharma was based on a nondiscriminatory justification; the Court focuses
on the simplest reason: “numerous [pediatrics department] employees reported
concerns about” Sharma, including “complaints of threats of physical violence.” [Dkt.
195 at 12.] The Court has discussed those complaints at length above, and there is no
doubt that an employer may decline to rehire an employee who has engaged in the
kind of conduct Sharma’s coworkers say he did. See Marshall v. Ind. Dep’t of Corr.,
973 F.3d 789, 792–93 (7th Cir. 2020) (termination for continually violating employer’s
policies was nondiscriminatory); Bodenstab v. County of Cook, 569 F.3d 651, 658–59
(7th Cir. 2009) (termination for threatening coworkers was nondiscriminatory). As
the Court has explained, there is no genuine dispute Sharma’s coworkers made these
22
complaints, 12 so the question is whether a reasonable jury could find that this reason
was pretext for race or national-origin discrimination. 13
No reasonable jury could make that finding. Sharma argues that a jury could
infer pretext from Defendants’ deviations from their normal processes and shifting
reasons for their decision not to reappoint him. See Baines v. Walgreen Co., 863 F.3d
656, 664 (7th Cir. 2017) (“An employer’s unusual deviation from standard procedures
can serve as circumstantial evidence of discrimination.” (citations omitted)). The
deviations he identifies include Defendants sharing his May 3, 2015 request for
confidential third-party intervention with individuals outside of OAE; reading his use
of the phrase “mentally disturbed” to indicate he was a threat instead of “as a request
for assistance and/or a cry for help”; and attempting to truncate his notice rights by
entering into a separation agreement. [Dkt. 213 at 15–16.]14 As for inconsistencies,
Sharma classifies some of the reports as hearsay [e.g., 214 ¶¶ 10 (complaints via
Fanti), 22 (complaint by Jordan Henry)], but he is mistaken. Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted, Fed. R. Evid. 801(c), but for the
pretext inquiry “the ultimate truth of th[e] allegations” about Sharma “is immaterial,”
Marshall, 973 F.3d at 793. Defendants are not attempting to prove that Sharma actually did
and said what his coworkers say he did, but rather that these reports were made to the
decisionmakers did not reappoint him. See Poullard, 829 F.3d at 858 & n.4 (out-of-court
statements were admissible for their effect on the decisionmaker’s state of mind).
13
Sharma argues that “whether [an employer] had a legitimate, non-discriminatory
reason for the [adverse employment action] is a question for the trier of fact based on the
disputes in this record.” [Dkt. 213 at 14 (quoting Martin v. F.E. Moran, Inc., 2017 WL
1316255, at *13 (N.D. Ill. Apr. 10, 2017)).] No doubt, but here, unlike Martin, there is no
genuine dispute that the threats Sharma is alleged to have made constitute a valid,
nondiscriminatory reason not to reappoint him. Cf. 2017 WL 1316255, at *13 (defendant’s
main evidence of its nondiscriminatory reason was not dispositive of disputes).
14
Sharma also notes that Dr. Van Voorhees testified that he used master logs to record
incidents involving other employees, but Defendants “could not produce any” in discovery.
[Dkt. 213 at 16; see Dkt. 217 ¶ 12.] While Sharma requested Defendants produce other logs,
they objected to doing so [Dkt. 233-3 at A964–66], and Sharma has provided no evidence that
he moved to compel such a production. Because there is no evidence that Defendant lacked
12
23
Sharma cites differing accounts of the meetings during July 2015 and omissions and
differing explanations in Defendants’ EEOC position statement that he argues cloak
“invidious intentions.” [Id. at 16–17.] Even assuming Sharma is correct about these
points, they have nothing to do with race or national origin. Indeed, Sharma argues
that “Dr. Van Voorhees and Todd Van Neck targeted [him] because he insisted on
conformity with UIC rules and regulations.” [Id. at 14.] But pretext requires the true
motive for an employer’s action to be illegal discrimination, and without evidence
permitting a jury to infer that motive, Sharma’s claim fails even if Van Neck and Dr.
Van Voorhees deviated from ordinary procedures or treated him unfairly. See
Chatman, 5 F.4th at 747; Brown, 700 F.3d at 1105–06. And as discussed below,
because Sharma’s only evidence of race or national-origin discrimination is
inadmissible, a jury could not find that illegal discrimination motivated Defendants’
actions.
First, Sharma alleges that Van Neck disliked him because of his race and
national origin because he didn’t take Sharma’s actions about the bad debt issue
positively, and Sharma “believe[s] he did the same things with many other employees
within the College of Medicine, people of color.” [Sharma Dep. at 236, Dkt. 234-1 at
A61.] Sharma did not hear Van Neck make disparaging comments about his race or
national origin, but he alleges that two others—Dr. Raj and Marc Archambeau, “the
chief accountant within the ambulatory administration”—reported such comments to
him. [Id. at 238–45, Dkt. 234-1 at A62–62.] For example, Sharma testified that “Dr.
other logs, there is no basis to infer that Dr. Van Voorhees lied about creating the logs, which
is essential for a finding of pretext. See Chatman, 5 F.4th at 746.
24
Raj mentioned numerous times that there were too many Indians in the department
as was told to her again and again from the dean’s office” [id. at 243, Dkt. 234-1 at
A63] and that Archambeau said Van Neck made a statement like “this f***ing Indian
… has the guts to stand up before us and making us look bad, so he should be taken
out,” which Dr. Raj confirmed [id. at 248–49, Dkt. 234-1 at A64]. While Van Neck’s
alleged comments are nonhearsay statements by a party opponent, Fed. R. Evid.
801(d)(2), Sharma’s testimony about Dr. Raj’s and Archambeau’s statements must
also be admissible, Fed. R. Evid. 805. Sharma has made no attempt to demonstrate
that Dr. Raj and Archambeau were testifying as to matters within the scope of an
agency relationship, Fed R. Evid. 801(d)(2)(D), and it is not apparent from their roles
that they were. This testimony is inadmissible hearsay, which cannot be used to
establish a genuine dispute at summary judgment, Wash. Cnty. Water Co., 77 F.4th
at 529, 15 and Sharma’s speculation about Van Neck’s intent is insufficient to defeat
summary judgment. Sharma’s speculative belief about Van Neck’s reasoning is
insufficient to defeat summary judgment, see FKFJ, Inc. v. Village of Worth, 11 F.4th
574, 585 (7th Cir. 2021).
Second, Sharma notes that Dr. Raj testified that five senior-level South Asian
employees “disclosed to me their feelings that they were not treated fairly” [Raj Dep.
at 67–69, Dkt. 234-2 at A454; see Dkt. 214 ¶ 73]; that a group of faculty, led by Dr.
If Dr. Raj had testified that she heard Van Neck make discriminatory comments, that
testimony would be admissible, but she did not testify to any such comments. [Dkt. 214 ¶ 73.]
Instead, she testified that she did not “recall anything specific” or “want to speculate” about
discriminatory animus by Van Neck. [Raj Dep. at 66–67, Dkt. 234-2 at A454; see also id. at
117–18, Dkt. 234-2 at A466–67 (denying that Van Neck or Dean Azar indicated that Sharma
was serving her poorly due to his race or national origin).]
15
25
Van Voorhees, raised concerns about Dr. Raj’s management style and was the driving
force behind Dr. Raj being forced to step down as Chief of Pediatrics [Raj Dep. at 105–
09, Dkt. 234-2 at A463–64; see Dkt. 217 ¶¶ 4–5]; and that Dr. Raj filed a charge of
discrimination with the EEOC [Dkt. 217 ¶ 6]. But the Court cannot consider Dr. Raj’s
testimony about what other senior-level employees said to her or her allegations in
her EEOC complaint on hearsay grounds, and it would be too speculative to infer
from complaints about her management style alone that those complaints were
motivated by discriminatory animus. See FKFJ, 11 F.4th at 585.
Third, Sharma attempts to prove he was treated less favorably than two sets
of similarly situated “non-Indian and non-Brown comparators.” [Dkt. 213 at 12–14.]
This is a valid way to show pretext. See, e.g., Khowaja v. Sessions, 893 F.3d 1010,
1015 (7th Cir. 2018) (McDonnell Douglas’s “similarly situated and pretext analysis
often overlap, as comparator evidence … [is] relevant to both inquiries” (citation
omitted); Coleman v. Donahoe, 667 F.3d 835, 852–53 (7th Cir. 2012) (in the
McDonnell Douglas context, “a discrimination plaintiff may employ … comparator
evidence to discharge her burden at the pretext stage”).
Although they need not be identically positioned, a plaintiff must show
the purported comparator was directly comparable to h[im] in all
material respects so as to eliminate other possible explanatory
variables. 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.
Crain v. McDonough, 63 F.4th 585, 592 (7th Cir. 2023) (cleaned up); see also Downing
v. Abbott Lab’ys, 48 F.4th 793, 805–06 (7th Cir. 2022) (plaintiff and comparator must
“have engaged in similar conduct without such differentiating or mitigating
26
circumstances as would distinguish their employer’s treatment of them” (internal
quotation omitted)). But Sharma’s proposed comparators are not similarly situated
to him in all material respects, so a jury could not infer race or national-origin
discrimination based on differing treatment of Sharma and the other employees.
The first set of proposed comparators are two white doctors, Wayne Franklin
and Krystal Revai, who Sharma argues “were treated more favorably insofar as
complaints about their behavior toward others … did not result in termination.” [Dkt.
213 at 12.]16 Here, too, Sharma runs into a hearsay problem. He testified that the
conduct of Dr. Franklin and Dr. Revai was documented, but no such documentation
appears in the record, and Sharma did not testify to firsthand knowledge of their
behavior or any action Defendants took in response. [Sharma Dep. at 230–31, Dkt.
234-1 at A60.] Dr. Raj testified that she was aware of some complaints about Dr.
Franklin but could not “recall specifically anything” and that she could not remember
whether there were complaints about Dr. Revai, although there might have been, and
she had not subjected either to an FFD evaluation. [Raj Dep. at 46–47, 54–62, Dkt.
234-2 at A449, A451–53; see also id. at 118–19, Dkt. 234-2 at A467 (no recollection of
threatening other employes with violence or termination by Drs. Franklin and
Sharma discusses the alleged mistreatment Dr. Raj suffered in this section of his brief,
not as a similarly situated white comparator but to bolster his argument that Indian
employees were treated less favorably than white employees. [Dkt. 213 at 12.] Evidence that
other members of a plaintiff’s protected classes were discriminated against could help permit
a jury find that the plaintiff himself suffered unlawful discrimination. Cf. Hall v. City of
Chicago, 713 F.3d 325, 333 (7th Cir. 2013) (“If a supervisor treated all women hostilely, we
generally permit an inference that the actor was motivated by their gender.” (citations
omitted)). But as explained above, there is no admissible evidence that Dr. Raj was
discriminated against on the basis of her race or national origin.
16
27
Revai).] Without admissible evidence about their behavior or the disciplinary actions
taken against them, a reasonable jury could not infer that Defendants’ reasons for
firing Sharma were pretextual. See Downing, 48 F.4th at 805–06.
The second set of comparators comprises three anonymous employees—A, B,
and C—who underwent FFD evaluations after making threats and who Sharma
claims received more favorable outcomes than he did. [Dkt. 217 ¶¶ 27–29.] Sharma
asserts that these individuals are “non-Indian, non-Brown” employees who engaged
in unprofessional, threatening behavior. [Dkt. 213 at 12.] UIC responded to these
individuals’ behavior “by asking what assistance it could offer to rehabilitate and
assist an employe in crisis,” but Sharma was offered no such assistance. [Id. at 12–
14.] Even assuming the behavior of these employees was similar to Sharma’s, they
are not valid comparators because there is insufficient evidence that they were
similar to Sharma in important aspects. He offers no evidence that Van Neck or Dr.
Van Voorhees was involved with any disciplinary decision with respect to these
employees. [See Dkt. 217 ¶¶ 27–29 (citing medical and UIC records that do not
mention Van Neck or Dr. Van Voorhees).] Further, Dr. Marder testified without
contradiction that neither employee A nor C works at the University of Illinois’s
Chicago campus. [Marder Dep. at 150–51, 157, Dkt. 234-1 at A427, A429.] Being
subject to the same supervisor and working in the same environment are important
factors for comparators, and without evidence to support these findings, a jury could
28
not find that employees A, B, and C were comparable in all material respects. Crain,
63 F.4th at 592. 17
None of Sharma’s attempts to demonstrate pretext, standing alone, permit a
reasonable jury to find that Defendants’ reasons for declining to reappoint him were
a cover for illegal discrimination. Of course, Ortiz holds that “all evidence belongs in
a single pile and must be evaluated as a whole.” 834 F.3d at 766. But nothing the
Court has discussed thus far constitutes any evidence of racial or national-origin
discrimination, so even in a pile, it does not amount to evidence from which a jury
could reasonably conclude that the adverse employment action was because of
membership in a protected class. Since “there is no evidence of pretext,” the “nondiscriminatory justifications” for Sharma’s adverse employment actions “must be
believed, which necessarily precludes liability under Title VII.” Hitchcock, 718 F.3d
at 738 (citation omitted). The Board is therefore entitled to summary judgment on
Sharma’s Title VII discrimination claims.
B.
Americans with Disabilities Act
Next, the Court considers Sharma’s ADA claim against the Board. The ADA
prohibits employers from discriminating “on the basis of disability in regard to …
discharge of employees, employee compensation, … and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). To succeed on this claim, Sharma
must show that (1) he is disabled, (2) he is otherwise qualified for his job, and (3) he
Sharma does not offer a similarly situated comparator who received a larger raise
when he received a 3% raise. Cf. Crain, 63 F.4th at 592 (“[A]t the very heart of an unequal
pay claim is the plaintiff’s burden to show unequal pay for equal work.”).
17
29
suffered an adverse employment action that was (4) caused by his disability. Brooks,
39 F.4th at 433. “The term ‘disability’ means, with respect to an individual—(A) a
physical or mental impairment that substantially limits one or more major life
activities of such individual; (B) a record of such an impairment; or (C) being regarded
as having such an impairment.” § 12102(1). Sharma argues that the Board regarded
him as disabled [Dkt. 213 at 18–19], so among other elements, he must prove that
the employer “believe[d], correctly or not, that [Sharma] ha[d] an impairment that
substantially limit[ed] one or more of the major life activities,” Povey v. City of
Jeffersonville, 697 F.3d 619, 623 (7th Cir. 2012), and that he suffered an adverse
employment action because of this perceived disability, Brooks, 39 F.4th at 433.
Even if a jury could find that the Board regarded Sharma as disabled, it could
not find that it subjected him to an adverse employment action because of a perceived
disability. As in Title VII, pretext is relevant to ADA claims. See id. at 435. The
relevant adverse employment actions are subjecting Sharma to an FFD evaluation,
putting him on paid leave, and declining to reappoint him. 18 If an employer “honestly
believed its reasons for taking the challenged actions, even if those reasons were
incorrect, then the reasons were not pretextual,” and there can be no ADA liability.
See id. (internal quotation omitted). Defendants argue that the reports that Sharma
made threats of violence was a nondiscriminatory reason to place him on leave and
require an FFD evaluation. [Dkt. 195 at 14–15; Dkt. 218 at 12.] The Court agrees.
Sharma’s complaint suggests that receiving a 3% rather than 7% raise is also an
adverse employment action [Dkt. 19 ¶ 217], but Sharma received this raise in 2014, well
before the May 2015 emails mentioning mental disturbance and stress that Sharma contends
were why the Board regarded him as disabled [see Dkt. 213 at 18–19].
18
30
“Preventing employees from endangering their coworkers is a business
necessity: ‘a safe workplace is a paradigmatic necessity of operating a business.’”
Painter v. Ill. Dep’t of Transp., 715 F. App’x 538, 541 (7th Cir. 2017) (nonprecedential)
(quoting EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1283 (7th Cir. 1995)).
As explained above, there is no dispute that complaints were made about Sharma’s
behavior, including threats, and he described himself as mentally disturbed, which
are a legitimate, nondiscriminatory reason to place Sharma on leave and require an
FFD evaluation. See Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 565 (7th Cir.
2009) (“[I]nquiries into an employee’s psychiatric health may be permissible when
they reflect concern for the safety of employees ….” (citations omitted)). And Sharma’s
non-reappointment follows directly from the FFD and psychological evaluation
findings. Drs. Marder and Friedman were unable to find Sharma fit to return to work,
and relying on those medical recommendations is a valid, nondiscriminatory reason
for the notice of non-reappointment. “Employers need not retain workers who,
because of a disability, might harm someone; such a rule would force an employer to
risk a negligence suit to avoid violating the ADA.” Painter, 715 F. App’x at 541 (citing
Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1129 (7th Cir. 2006); Palmer v. Cir.
Ct. of Cook Cnty., 117 F.3d 351, 352 (7th Cir. 1997)).
Sharma argues that Painter is distinguishable because the plaintiff there
brought a claim under 42 U.S.C. § 12112(d) based on a diagnosis of paranoia, but
Sharma is pursuing a regarded as disabled claim where there was no diagnosis. [Dkt.
213 at 19.] These distinctions are not dispositive. Being regarded as disabled is one
31
way to be disabled within the meaning of the ADA, § 12102(1), not a separate type of
claim. And in any event, the Court does not rely on Painter as dictating a result on
these specific facts, but rather standing for the general principle that an employer
may take steps—up to and including termination—if an employee poses a threat to
coworkers. 517 F. App’x at 541; accord AIC Sec., 55 F.3d at 1283.
Because the Board has identified nondiscriminatory reasons for the adverse
employment actions, it is entitled to summary judgment unless a jury could find that
those reasons were pretextual. Brooks, 39 F.4th at 435; see Hitchcock, 718 F.3d at
738. No evidence supports such a finding. Similar to his lack of evidence of race or
national-origin discrimination, Sharma identifies no statements by Defendants, Dr.
Marder, Dr. Friedman, or anyone else that are suggestive of bias toward a perceived
disability. Sharma argues that his non-reappointment following Drs. Marder’s and
Friedman’s inability to make a finding as to his fitness to return to duty implies that
Defendants perceived him as disabled. [Dkt. 213 at 18.] But perceiving him as
disabled is only one element Sharma must prove. The possibility that Defendants
regarded him as disabled does not establish that they declined to reappoint him
because of that perceived disability, rather than because of the nondiscriminatory
reason that he reportedly threatened coworkers and refused to engage with the FFD
process. See Brooks, 39 F.4th at 435. Perhaps the doctors were mistaken about their
findings and the Board inaccurately deemed Sharma as a threat, but “[p]retext means
more than a mistake on the part of the employer; pretext means a lie, specifically a
phony reason for some action.” Id. (cleaned up). A jury could not reasonably find that
32
Sharma was put on leave, subjected to an FFD review, and not reappointed because
of discrimination against a perceived disability rather than the reported threats.
Therefore, the Board is entitled to summary judgment on Sharma’s ADA claim.
C.
Equal Protection
The Court now turns to Sharma’s 42 U.S.C. § 1983 equal protection claim. He
alleges that he was subjected to inferior treatment because of his race and national
origin. [Dkt. 19 ¶¶ 242–45.] Equal protection claims under § 1983 are subject to the
same analysis as Title VII discrimination claims, Dunlevy v. Langfelder, 52 F.4th 349,
353 (7th Cir. 2022), and Sharma incorporates his Title VII analysis into his equal
protection argument [Dkt. 213 at 20]. Thus, Sharma’s equal protection claim fails for
the same reasons as his Title VII claims.
Separately, Van Neck and Dr. Van Voorhees are entitled to qualified immunity
on this claim. In § 1983 suits, “[q]ualified immunity protects government officials
from liability for civil damages when their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Taylor v. Town of Milford, 10 F.4th 800, 806 (7th Cir. 2021) (cleaned up). Although
qualified immunity is an affirmative defense, after it is invoked, the plaintiff has the
burden to defeat it by showing that the defendants violated clearly established law.
Id. Van Neck and Dr. Van Voorhees invoked qualified immunity [Dkt. 195 at 15–16],
and in response, Sharma argued only that the evidence was disputed and that the
Court must accept his version of events at summary judgment [Dkt. 213 at 22]. While
true, that does not satisfy his burden of identifying a closely analogous case or clear
trend in caselaw, or establishing that the constitutional violation is so obvious that a
33
similar case is unnecessary. See Stockton v. Milwaukee County, 44 F.4th 605, 620–21
(7th Cir. 2022). Van Neck and Dr. Van Voorhees are entitled to qualified immunity.
D.
State Law Claims
Finally, the Court addresses Sharma’s state law claims against Dr. Van
Voorhees. No party has asked the Court to relinquish supplemental jurisdiction over
Sharma’s state law claims if the Court grants summary judgment on his federal
claims, and the Court chooses to retain jurisdiction.
When the federal claim in a case drops out before trial, a district court
usually relinquishes jurisdiction over any supplemental claim to the
state courts. But judicial economy, convenience, fairness and comity
may point to federal retention of state-law claims when it is absolutely
clear how the pendent claims can be decided.
Donald v. Wexford Health Sources, Inc., 982 F.3d 451, 461 (7th Cir. 2020) (cleaned
up). The interests of judicial economy, convenience, and fairness strongly counsel in
favor of deciding all claims in a single forum. The parties have litigated this case for
six years, built a complete evidentiary record, and fully briefed Defendants’ summary
judgment motion. The Court is prepared to rule on Sharma’s state law claims, which
it has considered alongside his federal claims.
1.
Preemption
The Court first addresses whether, as Defendants argue, Sharma’s state law
claims are preempted by the Illinois Human Rights Act (“IHRA”). [Dkt. 195 at 16–
17.] The IHRA preempts state law tort claims when “the core of the plaintiff’s theory
[i]s that the plaintiff was a victim of racial harassment.” Naeem v. McKesson Drug
Co., 444 F.3d 593, 604 (7th Cir. 2006) (cleaned up). “[I]f the [defendant’s] conduct
would be actionable even aside from its character as a civil rights violation because
34
the IHRA did not furnish the legal duty that the defendant was alleged to have
breached, the IHRA does not preempt a state law claim seeking recovery for it.” Id.
(cleaned up). The Court agrees with Sharma that the IHRA does not preempt his
claims. As Sharma points out, his claims do not rest solely on race or national-origin
discrimination—he also asserts that Dr. Van Voorhees disliked him because Sharma
required Dr. Van Voorhees to comply with UIC financial policies. To the extent that
those allegations can support Sharma’s claims, his claims are not preempted. See
Peaster v. McDonald’s Corp., 2023 WL 5387573, at *8 (N.D. Ill. Aug. 22, 2023)
(limiting the analysis to non-preempted allegations).
2.
Tortious Interference
Sharma brings a claim for intentional interference with prospective economic
advantage. To prevail, he must prove: “(1) that he had a reasonable expectation of
continued employment; (2) that [Dr. Van Voorhees] knew of the expectancy; (3) that
[his] intentional and unjustified interference caused the termination of the
employment; and (4) damages.” Harrison v. Addington, 955 N.E.2d 700, 708 (Ill. App.
Ct. 2011) (citations omitted). This claim fails because a reasonable jury could not find
that Dr. Van Voorhees intentionally and unjustifiably caused Sharma’s nonreappointment.
Sharma argues that Dr. Van Voorhees interfered with his contract by
“attempting to terminate it prematurely and spreading lies … culminating in
subjecting him to an FFD examination and ultimate termination.” [Dkt. 213 at 27.]
But as discussed above regarding Sharma’s inability to show pretext, the record lacks
admissible evidence that Dr. Van Voorhees believed the reports about Sharma were
35
not true or that he fabricated or induced others to fabricate the reports. Sharma’s
best evidence in support of his argument is his testimony that Dr. Van Voorhees
became “upset” when Sharma insisted on following UIC financial policies regarding
travel and reimbursements. [Dkt. 217 ¶¶ 7–8; Sharma Decl. ¶¶ 5–6, Dkt. 233-2 at
A916–17.] Even assuming that Sharma’s testimony about Dr. Van Voorhees’s state
of mind is based on firsthand observation rather than speculation, that evidence
alone is not enough to support a reasonable inference that Dr. Van Voorhees later
rigged the FFD process to bring about the non-renewal of Sharma’s contract. With no
corroborating evidence about Dr. Van Voorhees’s intent, that inference is too
speculative to survive summary judgment. See FKFJ, 11 F.4th at 585 (“While we
consider reasonable inferences in favor of [the nonmovant], we need not draw every
conceivable inference, in its favor. A party must present more than mere speculation
or conjecture to defeat a summary judgment motion.” (cleaned up)). Dr. Van Voorhees
is entitled to summary judgment on Sharma’s tortious interference claim.
3.
Intentional Infliction of Emotional Distress
Finally, the Court turns to Sharma’s IIED claim. To prevail on an IIED claim
under Illinois law:
First, the conduct involved must be truly extreme and outrageous.
Second, the actor must either intend that his conduct inflict severe
emotional distress, or know that there is at least a high probability that
his conduct will cause severe emotional distress. Third, the conduct
must in fact cause severe emotional distress.
Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill. 2003) (internal quotation omitted). To
be outrageous, “the nature of the defendant’s conduct must be so extreme as to go
36
beyond all possible bounds of decency and to be regarded as intolerable in a civilized
community.” Id. at 80–81 (citation omitted).
Even viewing the record in Sharma’s favor, a reasonable jury could not find
that Dr. Van Voorhees’s conduct rose to this level. Sharma argues that a jury could
conclude that Dr. Van Voorhees embarked on a months-long campaign to surveil
Sharma, interfere with his ability to seek mediation services, and “gaslight” Sharma
by falsely claiming that Dr. Van Voorhees had counseled him. [Dkt. 213 at 27–28.]19
But “in the absence of conduct calculated to coerce an employee to do something
illegal, [Illinois] courts have generally declined to find an employer’s retaliatory
conduct sufficiently extreme and outrageous as to give rise to an action for intentional
infliction of emotional distress.” Welsh v. Commonwealth Edison Co., 713 N.E.2d 679,
684 (Ill. App. Ct. 1999) (rejecting an IIED claim where plaintiffs alleged “they were
demoted, transferred, forced to perform ‘demeaning’ and ‘humiliating’ tasks,
harassed, intimidated, and threatened with termination”). A reasonable jury could
not find that Dr. Van Voorhees engaged in extreme and outrageous conduct under
Illinois law, so he is entitled to summary judgment on Sharma’s IIED claim.
Sharma also argues that Dr. Van Voorhees induced Hargunani and Thakar to lie
about Sharma’s behavior, but the evidence he cites in support of that point does not raise a
genuine dispute as to whether Dr. Van Voorhees lied about this. [See Dkt. 214 ¶¶ 32, 39.]
19
37
IV.
Conclusion
For the foregoing reasons, Defendants’ motion for summary judgment [Dkt.
194] is granted. Judgment will enter in favor of Defendants and against Sharma.
Civil case terminated.
Enter: 17-cv-7378
Date: September 29, 2023
__________________________________________
Lindsay C. Jenkins
United States District Judge
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