Calvente v. Ghanem et al

Filing 112

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 9/15/2022. Mailed notice(gel, )

Case: 1:20-cv-03366 Document #: 112 Filed: 09/15/22 Page 1 of 40 PageID #:7056

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LISA CALVENTE ,
Plaintiff,
v.
SALMA GHANEM and DEPAUL
UNIVERSITY,
Defendants.

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Case No. 20-CV-03366
Judge John Robert Blakey

MEMORANDUM OPINION AND ORDER
Professor Lisa Calvente sues her former employer, DePaul University, and its
Acting Provost, Dr. Salma Ghanem, for denying her tenure in 2019, alleging that they
racially discriminated and retaliated against her in violation of Title VII of the Civil
Rights Act of 1964 and 42 U.S.C. § 1981; and breached contractual duties under
DePaul’s Faculty Handbook. [1]. Defendants now move for summary judgment [45]
and to strike the expert report and testimony of Plaintiff’s proffered expert, Dr. Susan
Zaeske [60]. Plaintiff also moves for partial summary judgment as to her retaliation
claims only. [86]. For the reasons set out below, the Court grants in part, and denies
in part, Defendants’ motion for summary judgment [45]; grants Defendants’ motion
to strike [60]; and denies Plaintiff’s motion for partial summary judgment [86].

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I.

Background 1
In 2011, DePaul hired Plaintiff Lisa Calvente as a tenure-track assistant

professor in its College of Communications (“the College”). [85] ¶ 33. Her research
focuses on the black diaspora, and cultural studies with a focus on using performance
and media ethnography to “interrogate discursive formations of racism, classism, and
hetero/sexism” to “generate possibilities of belonging and social justice.” [100] ¶ 1.
Born in the United States, Plaintiff self-identifies as Vietnamese and Puerto Rican,
ethnically Latinx, and racially Black and Asian. [85] ¶ 4.
A.

DePaul’s Tenure Process

Like many universities, DePaul has a years-long rigorous and multi-step
process to tenure.

[85] ¶ 9.

Tenure-track professors spend up to six years on

probation during which they undergo periodic formal and informal evaluations. Id.
¶¶ 10–11.

DePaul’s Faculty Handbook sets out the general process for formal

The Court draws the facts from the parties’ Rule 56.1 Statements of Facts (“SOF”) and responses,
thereto. See [85], [100], [102]. In their SOF responses, the parties attack the others’ compliance with
local rule 56.1. [100] at 1–3; [104] at 6–7. Defendants allege that forty-three of Plaintiff’s responses:
(1) misrepresent facts; (2) rely on conclusory or argumentative statements; and/or (3) attempt to
contradict her own deposition testimony with a new declaration. [100] at 1–2. The record does not
contain violations of Rule 56.1 sufficient to warrant the wholesale rejection of Plaintiff’s responses,
but this Court will address specific deficiencies or inconsistencies as needed, and if material to the
ruling. Plaintiff also argues that Defendants violated Rule 56.1 in responding to her SOF in support
of partial summary judgment, faulting them for citing to previously filed exhibits in their own
summary judgment pleadings rather than re-attaching them to their response. [104] at 6–7. Rule
56.1(b)(3), however, permits an opposing party to cite to “parts of the record” and does not require
Defendants to re-attach previously filed exhibits. Plaintiff also faults Defendants for relying on her
factual admissions relating to Defendants’ motion for summary judgment. Plaintiff argues that
“rather than spend time and energy responding to” some of Defendants’ “irrelevant allegations” in
support of their summary judgment motion, “she chose to admit and move on.” [104] at 6 n.5. She
insists, without legal support, that those admissions do not bind her for purposes of her own summary
judgment motion or at trial. Id. The law disagrees. Formal concessions in pleadings, or stipulations
by a party or its counsel, may constitute judicial admissions “that are binding upon the party making
them”; they “may not be controverted at trial or on appeal”; and “a judicial admission is conclusive,
unless the court allows it to be withdrawn.” Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th Cir.
1995).
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evaluations and tenure reviews, but the levels of review may vary among local
academic units. [100] ¶ 7.
At the College, formal evaluations occur at least bi-annually, during which
tenured faculty evaluate a professor on three criteria: (1) teaching; (2) scholarship,
research, and other creative activities; and (3) service to DePaul. [85] ¶ 15. First, a
Personnel Committee (“Committee”) made up of a subset of the College’s tenured
faculty interviews the professor and considers his or her personal statement, resume,
examples of scholarship, student evaluations and teaching criteria, among other
things. [85] ¶¶ 12–13. Then the Committee prepares a written report and, for each
criterion, grades the tenure-track professor as “excellent”, “very good”, “fair”, or
“unsatisfactory” and indicates whether the professor has made “very good”, “good”,
“fair”, or “unsatisfactory” progress towards tenure. Id. ¶ 22. Second, the College’s
tenured faculty reviews the Committee’s report and votes on whether: (1) the
professor has made adequate progress toward tenure on each criterion; and (2) to
renew the employment contract. Id. Third, the College’s dean writes a letter to the
provost independently recommending whether to renew a contract. Id.; [100] ¶ 7.
Tenure-track professors may apply for tenure in their final year of probation.
The Faculty Handbook states that, before granting tenure, “the university should
have no reasonable doubt about a faculty member’s demonstrated qualifications and
continued capacity to contribute to DePaul’s distinctive goals and academic mission.”
Id. ¶ 15. The tenure review also focuses on the three core criteria and the College’s

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written guidelines require “excellence in at least two areas, with the third being rated
at least very good.” [85] ¶ 22.
The tenure-review process includes even more levels of review than the formal
reviews. First, the College’s Committee reviews the tenure-track professor’s file
(known as a “dossier”), interviews the candidate, and prepares a written report.
Second, the College’s tenured faculty votes on whether to promote and prepares an
addendum to the Committee’s report.
independent recommendation.

Third, the College’s dean makes an

Fourth, the University Board on Promotion and

Tenure (the “UBPT”)—a committee of seven tenured facility from across DePaul—
makes a recommendation. [85] ¶ 17. Fifth, and finally, DePaul’s provost makes the
final tenure decision. Id. ¶ 18. The Faculty Handbooks states that “only in rare
instances and for compelling reasons will the provost overturn a promotion or tenure
recommendation made by the UBPT.” Id. If DePaul denies tenure, then a candidate
may appeal to the Faculty Committee on Appeals and DePaul’s President makes the
final decision on the appeal. Id. ¶¶ 19–20.
B.

Plaintiff’s Tenure Process Experience

DePaul hired Plaintiff in 2011 and she had three formal reviews in 2013, 2015,
and 2017. Id. ¶¶ 33–34, 39. She became eligible for tenure in 2018–2019. Id.
1.

2013 Formal Review

In her 2013 review, the Committee’s report noted “numerous strengths” in her
teaching but remarked on some issues in a required undergraduate course,
Intercultural Communications (“CMN 103”), where several students reported

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confusion from unclear, lengthy lectures that did not provide enough interactive
discussion-based learning. [85] ¶ 41. The Committee noted, however, that Plaintiff
showed an “impressive” and “quick response” to these critiques; they rated her as
“making good/very good progress” toward tenure in teaching. Id.
As to research, when DePaul hired her in 2011, Plaintiff had reported plans to
turn her PhD dissertation into a book manuscript. Id. ¶ 32. By her 2013 formal
review, she had finished two chapters of her manuscript, published one book review,
and presented a co-authored paper and solo-authored paper at a conference. Id. ¶ 42.
Yet the Committee noted some concern that Plaintiff had only completed two chapters
of her manuscript despite completing her dissertation in 2008. Id. Overall, it found
“satisfactory” progress toward research but that she would “need to devote more
attention to diversifying strategies for seeing her work published.” Id. Finally, as to
service, the Committee rated her “very good.” Id. ¶ 43. The Committee unanimously
recommended contract renewal, finding her tenure progress “good/very good” in
teaching; “satisfactory” in research; and “very good” in service. Id. ¶ 44.
2.

2015 Formal Review

Plaintiff did not fare as well in her 2015 formal review.

This time, the

Committee found that Plaintiff had made “poor” progress in teaching and research
and “fair to good” progress in service and voted 6 to 1 against retention. Id. ¶ 52; [48]
(Tab B, Ex. 186A). With respect to teaching, the Committee found that while students
gave her “consistently strong” quantitative ratings, qualitative ratings showed “a
range of recurrent and somewhat polarizing themes.” [85] ¶ 48. While many students

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appreciated her courses’ rigor and enthusiastically endorsed Plaintiff’s teaching,
others reported a climate “intimidating and unwelcoming to diverse opinion and
perspective.” Id. The report stated that, when the Committee interviewed Plaintiff
and told her it was “deeply troubled about our students experiencing this level of
hostility and intimidation on the first day of class,” Plaintiff responded that “Most
students drop. I advise them to drop”, “telling them to drop is honest”, and “are you
asking me, do I want them all in my class? No, not really.” Id. Aside from this issue,
the report also suggested that she distinguish the content of some of her courses and,
particularly for entry-level courses, create a better balance between theoretical
source and disciplinary texts. Id. ¶ 49.
With respect to research, the report found Plaintiff had not made progress on
her manuscript but saw some progress “in moving her previous conference papers
towards publication.” Id. ¶ 50. The report noted a “concern about the amount of time
invested and the choices made regarding the research projects she is pursuing” and
found she had “not made the necessary progress needed towards tenure” in research.
Id. It acknowledged, however, that she had been awarded a prestigious Woodrow
Wilson Fellowship and given a year-long leave for research. Overall, it found her
service record “fair to good.” Id. ¶ 51; [48] (Tab B, Ex. 186A).
Next, the tenured faculty reviewed her.

[85] ¶ 54.

In addition to the

Committee’s report, the tenured faculty received a letter from Plaintiff objecting to
the Committee’s report. On her mixed student evaluations, Plaintiff wrote: “The
‘hostility’ in my evaluations is the result of the structural racism and the

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normalization of whiteness within the academy that unfairly scrutinizes faculty of
color, primarily women, who do not reinforce the standards and norms of white (male)
supremacy.” [85] ¶ 53; [102] ¶ 31. After review of the record, the tenured faculty
recommended non-retention by a 13–5 vote. [85] ¶ 56. It issued a written addendum
to the Committees’ report stating that “most of us believe that” Plaintiff’s “positive
quantitative and qualitative comments do not outweigh the severity of the problems
that have arisen regarding” her “teaching style and the manner in which she
addresses some students.” Id. ¶ 54. The addendum identified aspects of Plaintiff’s
teaching that she must address before she would meet tenure expectations. Id. As
to research, it acknowledged her research fellowship and that she was early in her
probationary period, but some faculty had “grave concerns regarding her ability to
produce the necessary peer-reviewed, quality research necessary to achieve tenure at
DePaul.”

Id. ¶ 55.

As to service, the addendum stated Plaintiff did not show

“substantial accomplishments” and faculty members thought Plaintiff was
“overselling” her service. Id. ¶ 56.
Defendant Dr. Ghanem, who was dean of the College at the time, rejected the
tenured faculty’s non-retention recommendation and gave her another chance after
she met with Plaintiff. Id. ¶¶ 6, 58. According to Plaintiff, Dr. Ghanem allegedly told
Plaintiff during their meeting that she “was an extraordinary teacher” and her
research fellowship was “a huge deal.” [102] ¶ 34. In a follow-up letter to Plaintiff,
Dr. Ghanem wrote:
Based on our discussion on March 30, 2015 in which you explained your
teaching philosophy and the efforts you make and will continue to make
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to be inclusive and welcoming to the students, I do not accept the
College’s recommendation for non–renewal. . . .You have a lot of work
ahead of you and I wish you success in your next review.
Id.
On April 16, 2015, Plaintiff formally complained to DePaul’s Office of
Institutional Diversity and Equity (“OIDE”) about race and gender discrimination
based upon the Committee and faculty’s vote against retention. [85] ¶ 59. OIDE
investigated and rejected her allegations finding no evidence of discrimination. Id. ¶
60.
3.

2017 Formal Review

In 2017, the Committee formally reviewed Plaintiff again. Id. ¶¶ 45, 62. This
time, the Committee found that Plaintiff had made “very good/fair” progress in
teaching and research and “fair” progress in service. Id. ¶ 67.
The Committee’s report found continued strong quantitative scores but that
some students still reported “feeling intimidated or ‘uncomfortable’” albeit “at low
frequency.” Id. ¶ 66. The report did not quantify the “low frequency” but stated: “it
is problematic that” Plaintiff “has ignored these long-standing issues and” has “at
least partially dismissed” the “developmental recommendations shared in previous
reports.” Id. As to research, the report stated it was “impressed” with Plaintiff’s
“research productivity in the last two years” and acknowledged the fellowship she
previously received. Id. It also instructed her to “further push her publication rate,
particularly with more journal articles, to make up for slower output in prior years.”

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Id. As to service, it acknowledged some achievements, but “emphasized” “the need to
take a more visible and significant role within her unit and at the college.” Id. 2
On November 17, 2017, the College’s tenured faculty voted 13–8 to terminate
Plaintiff’s contract.

Id. ¶ 72.

Its written addendum to the Committee report

questioned whether Plaintiff’s teaching style adhered to the University’s Vincentian
tradition 3 and stated that, if she remained, “the tenured faculty would need to see
significant changes and improvements in her teaching practices” that “would need to
be apparent in teaching materials, student reports, and peer observations.” Id. As
to research, the addendum noted a divide among the tenured faculty on her progress
but took issue with how Plaintiff described some of her research progress. Finally,
as to service, the addendum found Plaintiff’s “service record at this advanced stage of
her probationary period was inadequate as compared with the typical load of her
peers” and that they “would need to see significant changes in her service.” Id.
Dr. Ghanem, still Dean of the College, again rejected the tenured faculty’s
recommendation. In a letter to Plaintiff, Dr. Ghanem noted some “improvement” over
the last review period but, as this was Plaintiff’s last formal review before Plaintiff
would apply for tenure, Dr. Ghanem warned: “I stress that you follow all of the
recommendations of both the Personnel Committee and the tenured faculty outlined”
in their 2017 formal review report. Id. ¶ 73.

The formal review procedures changed between 2015 and 2017 and the Committee no longer voted
on whether to retain a tenure-tracked colleague. [85] ¶¶ 67, 72.
2

DePaul, a Catholic University founded by the Vincentians, expects its faculty to teach in the
“Vincentian tradition”, which its Faculty Handbook describes as “an environment in which persons
engaged in learning and research exercise this freedom and respect it in others as contributing to the
God-given dignity of individual persons and enhancing the academic process.” [85] ¶¶ 3, 23
3

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Afterward, Plaintiff met with Dr. Ghanem. According to Plaintiff, Dr. Ghanem
told her that the provost knew about Plaintiff’s case and that Plaintiff “was fine for
tenure.” [102] ¶ 38. 4 Plaintiff also told Dr. Ghanem that she believed that the
Committee and tenured faculty had retaliated and/or discriminated against her5
again and she wanted to file another OIDE complaint but complained that it was
“time-consuming.” [85] ¶ 74. According to Plaintiff, Dr. Ghanem told her not to file
a complaint. Id. Dr. Ghanem remembers this exchange quite differently, recalling
that, after Plaintiff began to cry, she asked Plaintiff whether it was “worth filing now,
or is it better to file” after she “goes up for tenure, if it doesn’t go her way.” Id.
Nevertheless, after the meeting, Dr. Ghanem notified OIDE about Plaintiff’s
complaints. Id. ¶ 75; [85] at 84–85 (Calvente Decl. ¶ 8). In response, OIDE asked to
meet with Plaintiff, but she told OIDE that “at this time I have decided not to pursue
any further action.” [85], Tab B at 261:22–263:15, Ex. 123.
4.

Events Between Plaintiff’s 2017 Review and 2018 Tenure
Review

Soon after her poor 2017 Formal Review, Plaintiff began inquiring about
possible University and College service opportunities. [85] ¶ 87. She also sent out
proposals to publishers to gauge interest in her manuscript. Id. ¶ 88. Further, in
Defendants argue that Plaintiff’s deposition transcript does not support this alleged fact. [102] ¶ 38
(response). Plaintiff’s deposition transcript, however, supports Plaintiff’s account of the 2017 meeting
at this point in the proceedings. [85] (Ex. B) at 300:16–301:13. The comment that Defendants cite in
their response relates to a different meeting in October 2018. Id.
4

It remains unclear whether Plaintiff told Dr. Ghanem at this meeting that she believed she had been
retaliated against, discriminated against, or both. Compare [85] ¶ 75 (noting “retaliation” only), and
Tab B, Ex. 123 (letter from OIDE to Plaintiff stating that Dean Ghanem reported Plaintiff believed
she “may have been retaliated against” in her annual review “as a result of having filed a complaint
in our office.”) with Tab B at 261:24–262:6 (Plaintiff stated in her deposition that she “expressed
concerns to Dean Ghanem about discrimination and retaliation”).
5

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August 2018 she asked a professor to submit a letter on her behalf discussing the
impact her students’ performances had on students and the public. Id. ¶ 89. Later
she asked for a similar letter from a Northwestern University professor. Id. ¶ 100.
In Spring 2018, she notified the Office of Academic Affairs that she intended to apply
for tenure in Fall 2018. Id. ¶ 90.
During this period, Plaintiff also continued to complain about alleged
discrimination and retaliation. First, the College terminated the contract of Professor
A 6, another tenure-track professor. Professor A appealed to the Faculty Appeals
Board and Plaintiff submitted a letter on his behalf. In it, she stated that she did not
believe that anyone had discriminated against him, but she believed that the College
only terminated him, a white male, so that it could discriminate with impunity
against her and another female minority tenure-track professor at the College, Dr.
Dillard. 7 Id. ¶ 79. The Faculty Appeal Board reported Plaintiff’s comments to OIDE
but Plaintiff refused to meet with them. Id.
Next, in June 2018, Plaintiff and Dr. Dillard sent an anonymous email
complaint to OIDE expressing concerns about “discrimination toward several
members of the College of Communication’s tenure-track faculty” who “are women,
of color, and of US origin.” [85] ¶ 81. The letter noted that “the most disturbing
component is the use of subjective performance evaluative criteria that has caused

Consistent with this case’s Confidentiality Order [1], the Court uses placeholders to refer to nonparty individuals involved in Plaintiff’s tenure process or whose own tenure experience Plaintiff raises
in support of her claim.
6

7

The publicly-available Complaint [1] refers to Dr. Dillard by name.

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harm to the women who are tenure-track Latina and/or African-American faculty, of
US origin” and these criteria “have become a method of intimidation and, in many
ways, reinforces the prejudices, unconscious or not, which Congress in Title VII
sought to eradicate as a basis for employment and misuse.” Id. OIDE responded to
the anonymous email with follow-up questions, but it remains unclear from the
current record what investigation may have occurred. Id.
Then, in October 2018, Plaintiff and Dr. Dillard met with Dr. Ghanem to
discuss their allegations of a racially hostile environment at the College. Id. ¶ 82.
The meeting lasted several hours during which Dr. Ghanem called OIDE to report
that Plaintiff and Dr. Dillard believed they were victims of discrimination. [100] ¶
26; [85] ¶ 83. Toward the end of the meeting, Professor A’s termination came up. [85]
¶ 83.

Dr. Ghanem commented that someone had claimed that she terminated

Professor A “so that she could terminate women of color.” Id. Plaintiff told Dr.
Ghanem that she had made this allegation. Id. According to Plaintiff, Dr. Ghanem’s
demeanor abruptly changed when Plaintiff said this and she quickly “ushered” them
out; Dr. Ghanem agrees that she ended the meeting soon after, but claims she had to
because of scheduling conflicts. [85] ¶ 82. Although Dr. Ghanem told Plaintiff and
Dr. Dillard that they would continue the discussion later, id. ¶ 83, Dr. Ghanem and
Plaintiff “never again had a meaningful conversation,” [102] ¶¶ 44.
Also in October 2018, Dr. Ghanem was promoted from the College’s dean to
Acting Provost of the University. Id. ¶ 6. Dr. Murphy took her place as Acting Dean
of the College. Id. ¶ 7. Soon after this change in leadership, two male students in

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Plaintiff’s Communications 103 course complained to Dean Murphy about a heated
exchange with Plaintiff during class following which Plaintiff emailed the entire
class, calling the students’ behavior “examples of misogynist acts that play out in
local and familiar settings like the classroom.” Id. ¶ 86. Dean Murphy stated that in
her 20 years with DePaul, “she had never experienced the level of intense emotion as
she did” from these students. Id.
C.

Plaintiff’s 2018 Tenure Review

In October 2018, the College and University began its review of Plaintiff’s
tenure application. The Committee issued a report and rated Plaintiff “very good” in
all three core criteria. Id. ¶ 103. By a vote of 19–2, however, the College’s tenured
faculty voted against granting tenure. Id. ¶ 113. As to teaching, the tenured faculty’s
addendum noted Plaintiff’s ongoing abuse of students commenting that the
Committee’s report failed to “adequately address a pattern of student concerns about
feeling intimidated and/or uncomfortable” in Plaintiff’s classes and “a long history of
sustained negative feedback, which appears in every review period.” Id. ¶ 106. It
also stated that some faculty thought Plaintiff showed “unwillingness to meet the
needs of the College.” Id. ¶ 107. As to research, some faculty believed Plaintiff did
not “accurately represent the volume of her research” and criticized her for failing to
complete her manuscript. Id. ¶¶ 109–10. The faculty also rejected Plaintiff’s efforts
to classify her student performances among her own research achievements. Id. ¶
111.

As to service, some of the tenured faculty thought Plaintiff continued to

“oversell” her service accomplishments. Id. ¶ 112.

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The College’s new Dean, Dr, Murphy, also recommended against tenure. Id. ¶
114. Her report to the UBPT acknowledged certain strengths Plaintiff had as a
teacher and that Plaintiff’s courses address topics that “can lead to challenging class
conversations that can be emotionally difficult.” Id. ¶ 115. But Dean Murphy stated
that, while Plaintiff’s teaching style works for many students, others “have voiced
strong concerns” that Plaintiff “is intimidating and dismissive.” Id. Dean Murphy
also highlighted the two students who had complained, commenting that she
“typically wouldn’t go into detail on a student complaint for a tenure and promotion
case” but “it provides a window into the type of polarizing comments that have shown
up in Dr. Calvente’s teaching evaluations.” Id. ¶ 116. Dean Murphy concluded that
the teaching critique “is less about the existence of the negative comments, and more
about how Dr. Calvente has chosen to respond (or not respond) to them.” Id. As to
research, Dean Murphy wrote that Plaintiff’s scholarship had some commendable
qualities, but she had not produced sufficient volume. Id. ¶ 118. She also agreed that
Plaintiff had not done enough to warrant an “excellent” rating in service. Id. ¶ 119.
The UBPT then reviewed Plaintiff’s file and a lengthy response from Plaintiff
in which she alleged that the reviewers’ reports: (1) misrepresent student
evaluations; (2) incorrectly discount her research particularly as to student
performances and her co-edited book; (3) incorrectly discount her service; (4) exhibit
“bias” as it relates to parental leave she took; and (5) reflect “bullying and
discriminatory behavior” in reaction to Dr. Ghanem’s decision to override their prior

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votes. Id. ¶¶ 121, 123. Ultimately, a majority of the UPBT disagreed with the College
and Dean Murphy and voted 4–3 in favor of granting tenure to Plaintiff. Id. ¶ 124.
Nevertheless, in June 2019, Dr. Ghanem, now Acting Provost, rejected the
UPBT’s recommendation and denied Plaintiff tenure. Id. ¶ 129. In her letter to
Plaintiff on her decision, Dr. Ghanem wrote:
The slim majority voting in favor of your application at the University
level does not, in my view, sufficiently answer the significant concerns
raised by your colleagues, concerns which led them to vote against
promotion and tenure by an overwhelming majority.…It is true that I
twice overturned recommendations by significant tenured faculty
majorities for contract nonrenewal. I did not do so because I disagreed
with the substantive concerns of your colleagues but because I
recognized, as do the College of Communication guidelines, “that faculty
members must have the opportunity to develop strengths and skills as
they progress toward tenure.”…In my letters of renewal in 2015 and
again in 2017 I encouraged you to heed the developmental
recommendations of your colleagues. Unfortunately, you have not done
so to a sufficient degree to change the evaluation of your colleagues.
Id. ¶ 130.
Plaintiff appealed the decision to the Faculty Appeal Board. Id. ¶¶ 131–34.
The Faculty Appeal Board investigated and found no evidence of retaliation,
discrimination, or violation of academic freedom, but it found: (1) some issues with
how the College described her student evaluations; (2) that the College had given her
“inconsistent” guidance on the service criterion; and (3) that Dr. Ghanem assigned
undue weight to the College’s concerns compared to University-wide criteria. Id.
¶ 139. It recommended that the University President, Gabriel Estaban, re-review
Plaintiff’s tenure application. Id. ¶ 140. President Estaban, consistent with his role,
did not re-evaluate the merits of Plaintiff’s tenure application but only examined it

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for procedural flaws. Id. ¶ 141. He found no material procedural irregularities to
warrant reversal of Dr. Ghanem’s tenure denial. Id. ¶¶ 140–42.
II.

Motion to Strike Dr. Susan Zaeske
Before the Court takes up the parties’ motions for summary judgment, it

considers Defendants’ motion to strike the expert report and testimony of Plaintiff’s
proffered expert Dr. Susan Zaeske. [60]. Dr. Zaeske is the Associate Dean for Arts
and Humanities in the University of Wisconsin-Madison’s (“UW-M”) College of
Letters & Sciences and a Professor of Rhetoric and Public Culture in UW-M’s
Department of Communication Arts. [60-3] at 1. Plaintiff offers Dr. Zaeske to opine
about a new tenure-track position that Plaintiff obtained at University of North
Carolina (“UNC”). In summary, Dr. Zaeske opines:
That a more prestigious institution with higher tenure expectations
than DePaul has invested in hiring Calvente because they assess her as
tenurable renders DePaul’s decision to deny her tenure highly
questionable.
[60-1] at 1.
To support this opinion, Dr. Zaeske states that she looked at UNC and
DePaul’s respective research rankings according to Indiana University Carnegie
Classifications and concluded that UNC, as a Research 1 school, is more prestigious
that DePaul, as a Research 2 school. Id. She opines that “Professors who are denied
tenure at R2 universities such as De Paul [sic] almost never are hired at R1
universities such as UNC because their record has been assessed as untenurable.”
Id.

She also cites anecdotal accounts of other professors who struggled to find

university positions after being denied tenure. [60-1] at 3, 6–7. Further, based on
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her experience at UW-M, she opines about what the “vast majority of universities”
look for when making hiring decisions, id. She also compares UNC’s Communication
Department’s written tenure policies to those at DePaul’s Communication
Department and asserts that UNC has more stringent requirements than DePaul.
Id. at 4–6. From this, she opines that Plaintiff “needed a record that convinced” UNC
“that she is capable of earning tenure under their standards, which are more
demanding than those of DePaul” and UNC’s decision to hire her “calls in to question
how it could be true that her record was judged as failing to meet the standard of
excellence at DePaul, an institution with less demanding tenure and promotion
expectations.” Id. at 3–6.
Defendants move to strike Dr. Zaeske’s report and testimony pursuant to
Federal Rule of Evidence 702, arguing that Dr. Zaeske lacks the qualifications to offer
such opinions and that the opinions are otherwise speculative, unreliable and
irrelevant. [60] at 2.
A.

Legal Standard

Rule 702 permits expert testimony if the expert has the requisite “knowledge,
skill, experience, training, or education” to support the opinion offered and (a) the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.” Fed. R. Evid. 702. The party who seeks to admit the expert

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testimony bears the burden to establish admissibility under Rule 702. See Lewis v.
CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
For the reliability prong, courts consider multiple factors, including whether
the methodology has been tested, subject to peer review, and generally accepted in
the relevant community. See Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir.
2000) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94 (1993)).
Further, even if an expert is qualified to offer opinions on a subject, the “expert’s
ultimate opinion must be grounded in the scientific process and may not be merely a
subjective belief or unsupported conjecture.” Lewis, 561 F.3d at 705. Under the
relevance prong, a court must ensure that the proposed expert testimony “logically
advances a material aspect of the proposing party’s case.” Daubert, 43 F.3d at 1315.
B.

Analysis

First, Defendants take issue with Dr. Zaeske’s qualifications to render the
opinion she offers. [60] at 10–11. They argue that she has spent her entire academic
career at UW-M and, although she has been involved in some hiring and tenure
decisions at UW-M and its Humanities and Arts Division, she has not studied
academic policy or decision-making, does not know “anything about UNC’s hiring
practices,” and has no particular knowledge, skill, experience, training or education
that qualifies her to opine on some “industry-wide” standard for university hiring
practices. Id. In response, Plaintiff insists that Dr. Zaeske is qualified to opine “about
hiring practices in the academy” given her roles at UW-M where she “easily reviewed
the files of hundreds of people looking to be hired at UW.” [79] at 6.

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The record supports the Defendants’ objections. First, although Dr. Zaeske’s
experience at UW-M may qualify her to opine about UW-M’s hiring and tenure
policies, Plaintiff fails to demonstrate how this experience somehow qualifies her to
testify regarding an industry-wide standard, to the extent such a standard may exist.
Zenith Elecs. Corp. v. WH-TV Broadcasting Corp., 395 F.3d 416, 419 (7th Cir. 2005)
(“A witness who invokes ‘my expertise’ rather than analytic strategies widely used by
specialists is not an expert as Rule 702 defines that term.”). Plaintiff merely insists
that an industry-wide standard exists because Dr. Zaeske says that one does. Such
a circular argument does not carry Plaintiff’s burden.
Second, even if an industry-wide standard exists and even if Dr. Zaeske is
qualified to opine about it (which she is not), Plaintiff does not offer Dr. Zaeske to
opine on general university hiring practices. Instead, she offers Dr. Zaeske to opine
that UNC has more stringent tenure expectations than DePaul and, therefore,
“DePaul’s decision to deny” Plaintiff tenure was, in her view, “highly questionable.”
Notably, the Seventh Circuit emphasizes that even if tenure “qualification depends
on objective measures—the terminal degree, the number of publications”—receiving
tenure “requires something more; it requires that the department believe that the
candidate have a certain amount of promise.” Namenwirth v. Bd. of Regents of Univ.
of Wisc. Sys., 769 F.2d 1235, 1242 (7th Cir. 1985). Here, Plaintiff has utterly failed
to establish that Dr. Zaeske is qualified to opine on UNC’s and DePaul’s individual
standards for evaluating a candidate’s “amount of promise.” Id.

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Second, Defendants argue that Dr. Zaeske offers no reliable basis to opine that
UNC is more prestigious than DePaul; misconstrues the tenure and promotion
policies of the universities and the respective colleges; did not rely on any peer-review
studies or data to support her opinions; did not consider records regarding Plaintiff’s
tenure denial at DePaul or the terms of UNC’s employment offer; and has no
knowledge as to UNC’s hiring process with respect to Plaintiff or why DePaul denied
Plaintiff tenure. Id. at 7–15.
Once again, the record supports Defendants’ objections. Anecdotes from a few
professors who struggled to find a tenure-track job after tenure denial do not
sufficiently support Dr. Zaeske’s opinion that professors who are denied tenure “at
R2 universities such as DePaul very rarely are able to win tenure-track positions at
R1 institutions.” [60-1] at 3. On this issue, Plaintiff insists that industry-wide data
and studies “simply do not exist.” [79] at 7. Even if true, that does not give Dr. Zaeske
carte blanche to offer an unsupported opinion. See Wendler & Ezra, P.C. v. Am.
Intern. Grp., Inc., 521 F.3d 790, 791 (7th Cir. 2008) (“We have said over and over that
an expert's ipse dixit is inadmissible.”)
Next, even if Dr. Zaeske is qualified to opine about UNC’s objective
qualification requirements for tenure, that does not support her conclusory opinion
that Plaintiff met those requirements. Dr. Zaeske simply assumes that she does so
because UNC hired Plaintiff. As Defendants point out, however, UNC did not hire
Plaintiff as a tenured professor; it hired her for a tenure-track position. Thus, at
most, UNC may believe that Plaintiff will be qualified for tenure in the future. It is

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speculative and misleading to suggest, as Dr. Zaeske’s opinion does, that Plaintiff is
currently qualified for tenure at UNC or that Plaintiff was qualified for tenure at
DePaul in 2019 when DePaul denied her tenure.
Finally, Dr. Zaeske’s opinion assumes—based on her experience at UW-M and
because UNC, like UW-M, is an R1 public university—that UNC would not hire a
professor unless the professor can meet tenure expectations. [60-1] at 20. Even if
there exists an industry-wide standard for R1 universities (which is not apparent),
Dr. Zaeske cites nothing to show that every university follows it with every candidate
that it might hire. Nor does she cite any data or evidence regarding the rate of tenureapproval at R1 universities.

To the contrary, she acknowledges that some R1

universities, especially those in the Ivy League, more readily hire professors who may
never qualify for tenure. Id. at 20. In the end, she failed to ever examine exactly why
UNC chose to hire Plaintiff. Thus, she can only offer speculation as to why it chose
to hire her.
Each of these issues undermine the reliability and admissibility of Dr. Zaeske’s
opinion. But even putting these aside, Plaintiff also fails to establish the relevance
of Dr. Zaeske’s opinion.

In deciding if an employer made a tenure decision for

discriminatory or retaliatory reasons, a plaintiff “must show more than he was a
qualified tenure candidate or even that the defendants’ reasons for denying him
tenure was mistaken, ill-considered, or foolish. He must show that the defendants’
reason was a lie.” Gupta v. Bd. of Regents of Univ. of Wisc. Sys., 63 F. App’x 925, 928
(7th Cir. 2003). Dr. Zaeske’s opinion and reasoning suggests, at most, that DePaul’s

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tenure decision “was mistaken, ill-considered, or foolish.” It does nothing to establish
that Defendants’ “reason was a lie;” thus her testimony would not aid the jury but
could serve to mislead or confuse them. See Collins v. Am. Red Cross, 715 F.3d 994,
1000 (7th Cir. 2013) (“[A] plaintiff must show that her employer is lying, not merely
that her employer is wrong.”). Overall, Plaintiff has not met her burden to establish
admissibility of Dr. Zaeske’s opinions.
Further, to the extent her opinions have any probative value, it also creates a
substantial risk of misleading a jury about the relevant evidentiary issues as to
Defendants’ motive.

This risk far outweighs any possible probative value and

exclusion is also warranted pursuant to Federal Rule of Evidence 403. Accordingly,
the Court grants Defendants’ motion [60] to exclude Dr, Zaeske’s opinions and
testimony pursuant to Rule 702 and, in the alternative, Rule 403.
III.

Motions for Summary Judgment [45], [86]
A.

Legal Standard

Summary judgment is appropriate where the movant shows, through
“materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory
answers, or other materials” 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; see
also Cosmano v. Lottery, No. 17 C 569, 2021 WL 5050283, at *3 (N.D. Ill. Nov. 1,
2021). In resolving a motion for summary judgment, the court “has one task and one
task only: to decide, based on the evidence of record, whether there is any material

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dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918,
920 (7th Cir. 1994) (citations omitted).
To withstand a motion for summary judgment, the nonmovant must “set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). The Court must construe the record “in the
light most favorable to the nonmovant and avoid” the “temptation to decide which
party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003). If the evidence, however, is “merely colorable, or is not significantly
probative,” Liberty Lobby, 477 U.S. at 249 (citations omitted), or merely raises “some
metaphysical doubt as to the material facts,” summary judgment may be granted,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
B.

Analysis

Plaintiff alleges that DePaul and Dr. Ghanem denied her tenure in retaliation
for her complaints about discrimination and on account of her race and ethnicity. [1].
She sues DePaul under Title VII and § 1981, and sues Dr. Ghanem under § 1981 only,
since an employee may not bring Title VII claims against individual defendants.
Carlson v. CSX Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (holding that, under
§ 1981, an employee may sue an individual defendant who “instituted a (specified)
adverse employment action” on an impermissible basis)). Courts “use the same
standard to review discrimination and retaliation claims under § 1981 and Title VII,”
Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017), and the Court does so below
in evaluating the parties’ summary judgment motions.

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1.

Retaliation

Although DePaul’s tenure process involves “numerous layers of independent
review” typical in tenure decisions, Adelman-Reyes v. Saint Xavier Univ., 500 F.3d
662, 667 (7th Cir. 2007), Plaintiff’s current theory of retaliation abandons any
reliance on potential retaliation in lower-level decisions and instead “focuses on Dr.
Ghanem’s reasons for overruling the UBPT” and denying her tenure. [88] at 4. She
argues that, while Dr. Ghanem previously supported Plaintiff, she changed her
position without a legitimate basis in overruling the UBPT’s vote in favor of tenure.
Dr. Ghanem did so, Plaintiff argues, in retaliation after: (1) she learned that Plaintiff
accused her of terminating Professor A so the College could fire with impunity
minority female professors; and (2) Plaintiff continued to complain about racism after
Dr. Ghanem allegedly told Plaintiff to stop. Id. at 9.
To prove retaliation in violation of either § 1981 or Title VII, a plaintiff must
establish “(1) a statutorily protected activity; (2) a materially adverse action taken by
the employer; and (3) a causal connection between the two.” Baines v. Walgreen Co.,
863 F.3d 656, 661 (7th Cir. 2017) (quoting Humphries v. CBOCS West, Inc., 474 F.3d
387, 403–04 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008)). Both statutes require proof
that an employer’s desire to retaliate was the “but for” cause of the materially adverse
action. See 42 U.S.C. § 2000-3(a); 42 U.S.C. §§ 2000-2(a); Univ. of Tex. SW Med. Ctr.
v. Nassar, 570 U.S. 338, 352 (2013) (“Title VII retaliation claims require proof that
the desire to retaliate was the but-for cause of the challenged employment action.”);

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Baines v. Walgreen Co., 863 F.3d 656, 661 (7th Cir. 2017) (applying “but for” causation
requirement to § 1981 retaliation claim).
A court should evaluate “the evidence as a whole” to determine if a reasonable
factfinder could conclude a “but for” retaliatory motive. See Lewis v. Wilke, 909 F.3d
858, 866–67 (7th Cir. 2018) (discussing Ortiz v. Werner Enters, 834 F.3d 760, 763 (7th
Cir. 2016)). One way the plaintiff may establish retaliation is through the longestablished burden-shifting method from McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). 8
Here, the parties do not dispute that Plaintiff engaged in numerous statutorily
protected activities and her tenure denial constitutes an adverse employment action.
As to qualifications, Plaintiff insists that the UBPT’s decision in favor of tenure
establishes that she was qualified for tenure. To further illustrate her qualifications
and the illegitimacy of Dr. Ghanem’s decision, she points to a white male professor,
Professor B, from a different college within the University who went up for tenure
the same time as her and had no history of engaging in statutorily protected activity.
[81] 30; [88] at 7. The tenured faculty in Professor B’s department and the UBPT
recommended against tenure, yet Dr. Ghanem rejected these recommendations and
awarded him tenure. Id. According to Plaintiff, Professor B’s “file was objectively
worse” than hers and Dr. Ghanem had no legitimate basis to treat them differently,
Under the McDonnell-Douglas framework, Plaintiff must establish a prima facie case that: (1) she
engaged in a protected activity; (2) she performed her job duties according to DePaul’s legitimate
expectations; (3) she suffered an adverse action; and (4) she was treated less favorably than similarly
situated employees who did not engage in protected activity. Lewis, 909 F.3d at 866–67 (citing Sitar
v. Ind. Dep’t of Transp., 344 F.3d 720, 728 (7th Cir. 2003)). If Plaintiff makes this prima facie showing,
then the burden would shift the Defendants to provide a legitimate reason for the adverse action. Id.
The burden then shifts back to Plaintiff to prove that Defendants’ “stated reason is mere pretext.” Id.
8

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thus retaliation provides the only explanation for Dr. Ghanem’s less favorable
treatment of Plaintiff. [88] at 7. In fact, Plaintiff argues that the undisputed facts
establish as a matter of law that Dr. Ghanem retaliated against her, [86].
Defendants disagree, arguing that Plaintiff lacked the qualifications for tenure
and that she cannot causally connect any of her statutorily protected activity to the
decision to deny her tenure. [65] at 31–34. Defendants also argue that Professor B’s
experience remains irrelevant to Plaintiff’s claims and that he does not qualify as
similarly situated for purposes of McDonnell-Douglas because: (1) he was a member
of a different college and thus evaluated by different faculty and under different
guidelines; (2) at a formal review six months prior, Professor B’s college had
unanimously found that he met expectations for progress toward tenure; and (3)
Professor B’s department chair and dean of his college both recommended him for
tenure. Id. at 25. According to Defendants, Professor B’s case “is quite distinct from
Plaintiff’s case where she was told for years leading up to her tenure review that she
was not progressing satisfactorily in the area of teaching and needed to improve.” Id.
at 25–26.
Given the parties’ disputes over Plaintiff’s and Professor B’s respective
qualifications, the prima facie and pretext inquiries remain inextricably intertwined
here. The Seventh Circuit has acknowledged that this often happens, particularly in
tenure cases, and in such scenarios, if a defendant offers a legitimate “reason for its
actions,” then the court “can proceed directly to the pretext inquiry.” Barnes v. Bd.
of Trustees of Univ. of Ill., 946 F.3d 384, 389 (7th Cir. 2020); see also Sun v. Bd. of

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Trs. of Univ. of Ill., 473 F.3d 799, 815 (7th Cir. 2007) (holding that disputes about
tenure qualifications are often “inextricably intertwined with the pretext analysis”).
This makes good sense since the McDonell-Douglas framework remains “just a means
to consider whether one fact caused another.” Lewis, 909 F.3d at 867 (discussing and
quoting Ortiz, 834 F.3d at 764 and Ferrill v. Oak Creek-Franklin Joint Sch. Dist., 860
F.3d 494, 499 (7th Cir. 2017)).
a)

Defendants Offer a Nondiscriminatory Reason for
Denying Tenure

As the Seventh Circuit has emphasized, “tenure cases require something more
than mere qualifications; the department must believe she has a certain amount of
promise.” Sun, 473 F.3d at 815; see also Kuhn v. Ball State Univ., 78 F.3d 330, 331
(7th Cir. 1996) (“Universities prune the ranks—sometimes ruthlessly, so that only
the best rise.”).
Here, Defendants put forth a sound and legitimate reason for Dr. Ghanem’s
decision to deny Plaintiff tenure: her College believed that she failed “to achieve the
requisite excellence for lifetime employment.” [65] at 26, 31. They also point to Dr.
Ghanem’s tenure denial letter to Plaintiff in which Dr. Ghanem states that she never
disagreed with the College tenured faculty’s concerns about Plaintiff; she nonetheless
gave Plaintiff additional opportunities and encouraged Plaintiff to “heed the
development recommendations” of the College tenured faculty; yet Plaintiff failed to
do “so to a sufficient degree,” [102] ¶ 103.

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constitute legitimate nonretaliatory reasons for the decision. 9 Thus, the Court may
proceed to the pretext inquiry, for which Plaintiff bears the burden of proof. Barnes,
946 F.3d at 389.
b)

Pretext

Pretext is more than “just faulty reasoning or mistaken judgment on the part
of the employer; it is a lie, specifically a phony reason for some action.” Silverman v.
Bd. of Educ. of Chi., 937 F.3d 729, 743–44 (7th Cir. 2011). If there exists “a question
of fact as to the believability of an employer’s purported reasons for an employment
decision,” however, then this suffices to defeat an employer’s summary judgment
motion. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 726 (7th Cir. 2005).
To show pretext, Plaintiff first argues that she was “unquestionably qualified”
while Professor B was “unquestionably not qualified,” [85] at 7. This argument fails.
The Seventh Circuit has repeatedly emphasized that “scholars are in the best position
to make the highly subjective judgments related with review of scholarship and
university service” and courts are “reluctant” to second-guess them “in the absence of
clear discrimination.” Farrell v. Butler Univ., 421 F.3d 609, 616 (7th Cir. 2005).
Accordingly, “evidence of the applicants’ competing qualifications does not constitute
evidence of pretext ‘unless those differences are so favorable to the plaintiff that there

Plaintiff argues that Defendants failed to articulate a legitimate reason because they fail to justify
why Dr. Ghanem treated Plaintiff and Professor B differently. [88] at 7–10. But Defendants need
only present a legitimate nonretaliatory reason for their decision regarding Plaintiff, not a legitimate
basis for treating her differently than someone else. Plaintiff’s argument really goes to pretext. Klein
v. Trustees of Ind. Univ., 766 F.2d 275, 280 (7th Cir. 1985) (“The defendant’s burden in presenting a
legitimate, non-discriminatory reason for its actions is only a burden of production; the burden of
persuasion rests at all times on the plaintiff.”).
9

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can be no dispute among reasonable persons of impartial judgment that the plaintiff
was clearly better qualified.’” Id. at 615 (7th Cir. 2005) (quoting Millbrook v. IBP,
Inc., 280 F.3d 1169, 1180 (7th Cir. 2002)).
Plaintiff also insists that she was qualified because “the UBPT told us so.” [81]
at 14. But that conclusion ignores the record and DePaul’s multi-level tenure review
process, as well as the UBPT minority that concurred with denying her tenure. More
accurately, the record shows that, for both Plaintiff and Professor B, their colleagues
and superiors remained divided on their qualifications for tenure. For Plaintiff,
nineteen of her tenured colleagues and the College’s dean found her unqualified for
tenure, while only two tenured colleagues found her qualified; among UBPT
members, four found her qualified, while three did not. For Professor B, reviewers in
his department split 4–4 on whether he was qualified, while reviewers in his college
voted 4–2–1 (recusal) against tenure; but his department’s Chair and his college’s
Dean found him qualified; among UBPT members, only one found him qualified,
while six did not.
In a similar vein, Plaintiff argues that Professor B’s “file was objectively worse”
than hers because she was a better or more productive scholar than Professor B; had
fewer (or less serious) student complaints; and was a more effective teacher. [81] at
21. Here, Plaintiff has not presented any evidentiary or theoretical basis for the
Court to second-guess the divided opinions of many scholars who evaluated Plaintiff’s
and Professor B’s scholarship. See Namenwirth v. Bd. of Regents of Univ. of Wisc.
Sys., 769 F.2d 1235, 1242 (7th Cir. 1985) (“It is not our role, as federal courts have

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acknowledged, to consider merely the hard evidence of research output and hours
spent on committee work, and reach tenure determinations de novo.”). Thus, the
Court cannot and will not engage in a comparative analysis of Plaintiff’s and
Professor B’s academic dossier.
Next, Plaintiff points to the timing of Dr. Ghanem’s decision. Plaintiff argues
that she lost Dr. Ghanem’s support when: (1) Plaintiff continued to complain of
discrimination after Dr. Ghanem allegedly told her to stop during their meeting in
late 2017; and (2) Dr. Ghanem learned during the October 2018 meeting with Dr.
Dillard that Plaintiff had accused Dr. Ghanem of “playing racial politics” by
terminating Professor A’s contract so that the College could fire with impunity
Plaintiff and Dr. Dillard. 10 [81] at 21–22, 25; [88] at 2. Plaintiff argues that prior to
these two meetings, Dr. Ghanem was her strongest supporter, had told her that she
would be fine for tenure and praised her as an “extraordinary teacher.” She also
argues that Dr. Ghanem used inconsistent (and shifting) reasons and standards when
she denied Plaintiff tenure compared to when she granted tenure to Professor B. See
[81] at 21–27; [88] at 7–9. At the summary judgment stage, these arguments fare
better.
While timing alone usually fails to create a genuine issue of material fact for
trial, it may suffice if the adverse decision comes “so close on the heels of a protected
act that an inference of causation is sensible,” Benuzzi v. Bd. of Educ. of City of Chi.,
647 F.3d 652, 665–66 (7th Cir. 2011), or if there exists “other evidence that supports

10

Defendants do not dispute that Plaintiff’s letter regarding Professor A constitutes protected activity.

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the inference of a causal link,” Daza v. Indiana, 941 F.3d 303, 309 (7th Cir. 2019)
(internal citations omitted).
The timing between Plaintiff’s meetings with Dr. Ghanem (late 2017 and
October 2018) and Dr. Ghanem’s decision to deny her tenure (June 2019) remains too
remote to infer a causal link without something more. But here, the record contains
some other evidence sufficient to create a material issue of fact for a jury to resolve.
First, although the parties dispute what happened at the 2017 and 2018
meetings, a reasonable jury might find that Dr. Ghanem tried to dissuade Plaintiff
from complaining about discrimination. Overall, the issue comes down to one of
credibility. Defendants point out that Plaintiff’s account of the 2017 meeting remains
incredible, because Dr. Ghanem called OIDE to report Plaintiff’s concerns after this
meeting. [101] at 4. But Dr. Ghanem admits that DePaul’s rules obligated her to
report it. Even though Plaintiff’s case is not a strong one, it does not defy logic to
believe that Dr. Ghanem complied with her reporting obligations, while also telling
Plaintiff to stop complaining, and allegedly resenting Plaintiff when she continued to
do so.
Second, based upon Plaintiff’s account of the October 2018 meeting, a
reasonable jury might find that Dr. Ghanem believed Plaintiff had personally accused
her of “playing racial politics” with respect to Professor A. Although Dr. Ghanem
already knew that someone had made such allegations, she did not know it was
Plaintiff. And, according to Plaintiff version of the facts, Dr. Ghanem’s demeanor
changed when she learned this and abruptly ended the meeting. A factfinder who

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credits Plaintiff’s account could reasonably believe that this accusation upset Dr.
Ghanem and motivated her to act. Defendants insist that Dr. Ghanem never believed
Plaintiff had accused Dr. Ghanem, specifically, of “playing racial politics” and argue
that Dr. Ghanem believed Plaintiff’s discrimination complaints were against others
or the College and University, generally. [101] at 4–5. But the resolution of such
factual disputes is a job for a jury.
Defendants also argue that Dr. Ghanem could not have retaliated against
Plaintiff because Dr. Dillard also complained of discrimination, yet Dr. Ghanem
granted tenure to her. [85] at 33–34. Certainly, this fact undermines Plaintiff’s
pretext theory, but it does not eviscerate pretext at summary judgment. First, Dr.
Dillard did not make the accusations regarding Professor A’s termination. Second,
the record suggests that Plaintiff had a longer history of making discrimination
complaints than Dr. Dillard. Third, Dr. Dillard received unanimous support at every
level of the tenure process [85] ¶ 149—thus, it may have been effectively impossible
for Dr. Ghanem to override a unanimous tenure recommendation.
Finally, Dr. Ghanem’s prior support for Plaintiff also provides some evidence
of pretext. As discussed above, some of Plaintiff’s tenured colleagues voiced concerns
for years over Plaintiff, including among other things, her unfair treatment of
students in class, how Plaintiff responded to teaching critiques, and weaknesses in
her scholarship record. Yet, at each stage, Dr. Ghanem overrode recommendations
to terminate Plaintiff’s contract, including in 2017 when she knew that Plaintiff
planned to apply for tenure the following year. According to Plaintiff, Dr. Ghanem

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also told Plaintiff that she was an “extraordinary teacher” and, after her 2017 formal
review, assured Plaintiff that she “would be fine” for tenure. Despite this, when Dr.
Ghanem denied her tenure, she stated that Plaintiff failed to show sufficient
improvement. This was the first opportunity Dr. Ghanem had to formally evaluate
Plaintiff after the 2017 and 2018 meetings. And it was the first time she took this
position and sided with the College’s tenured faculty. It remains possible that Dr.
Ghanem finally decided that Plaintiff’s critics were right, and Plaintiff had run out of
second and third chances. Yet, based upon Dr. Ghanem’s prior support for Plaintiff
in the face of these enduring critiques, a reasonable jury might infer that Dr.
Ghanem’s stated reasons for rejecting the UBPT’s vote constitute pretext.
Finally, Dr. Ghanem’s reasons for denying Plaintiff tenure compared to her
reasons for granting Professor B tenure also provides some evidence of pretext. This
does not mean that Plaintiff may establish retaliation by comparing her substantive
qualifications to Professor B’s—this remains an inappropriate way to show pretext
here. But Dr. Ghanem’s decision with respect to Professor B’s calls into question
whether Dr. Ghanem applied a harsher standard to Plaintiff, which could suggest
pretext. See, e.g., Joll v. Valparaiso Cmty. Sch., 953 F.3d 923, 931 (7th Cir. 2020)
(“deviation from standard procedures” can indicate pretext); Coleman, 667 F.3d at
858 (reversing summary judgment and explaining that selective enforcement of
company policy can establish pretext). Specifically, for Professor B, Dr. Ghanem
downplayed critiques about him and votes against tenure, writing that his
department colleagues had voted unanimously in his prior review to extend his

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contract knowing that he “would be applying for tenure in the fall.”

Id. ¶ 38

(response). Yet, for Plaintiff, Dr. Ghanam emphasized critiques and downplayed
support (particularly from the UBPT). Moreover, for Professor B, in his prior review,
his department failed to vote on whether he had made “adequate progress toward
tenure.” Id. Dr. Ghanem, in her deposition in this case, stated that this procedural
error coupled with the department’s unanimous vote at the last formal review
provided a “compelling reason” to award tenure to Professor B. Id. Yet, the Faculty
Appeal Board found evidence of procedural unfairness with Plaintiff’s case, too (i.e.,
the College’s inconsistent feedback on her service requirements, and misstatement of
the volume of critical student evaluations) and Dr. Ghanem does not grant tenure to
Plaintiff based on these procedural failures.
Overall, the reviewers’ votes for both Plaintiff and Professor B indicate
disagreement on whether either should receive tenure. Yet, Dr. Ghanem found “no
reasonable doubt about” whether Professor B should receive tenure but found doubt
for Plaintiff. Her stated doubt as to Plaintiff becomes more noteworthy given her
prior support during Plaintiff’s formal reviews.
This evidence, taken together, certainly does not “compel the conclusion” that
Dr. Ghanem retaliated against Plaintiff when she denied her tenure (indeed,
Plaintiff’s case is weak); but “at a bare minimum it suffices to defeat” Defendants’
summary judgment motion on the retaliation claims.

Rudin, 420 F.3d at 726.

Accordingly, neither Plaintiff nor Defendants are entitled to summary judgment on
the retaliation claims.

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2.

Discrimination

Plaintiff also alleges that Defendants denied her tenure on account of her race
in violation of 42 U.S.C. § 1981 and Title VII. To survive a summary judgment motion
on a § 1981 or Title VII discrimination claim, a plaintiff must present evidence that
“would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity,
sex, religion, or other proscribed factor caused” the “discharge or other adverse
employment action.” Ortiz, 834 F.3d at 765–66; see also Fields v. Bd. of Ed. Of City
of Chi., 928 F.3d 622, 626 (7th Cir. 2019) (“We apply the same standard to
discrimination claims” whether under § 1981 or Title VII).
Section 1981 and Title VII discrimination claims, however, have different
causal requirements. For a discrimination claim pursuant to § 1981, a plaintiff must
establish that the proscribed factor was the “but for” cause of the adverse action.
Comcast Corp. v. Nat’l Assoc. of African Am.-Owned Media, 140 S.Ct. 1009, 1014
(2020) (holding that “§ 1981 follows the general rule” that “a plaintiff bears the
burden of showing that race was a but-for cause of its injury.”). In contrast, a Title
VII race discrimination claim only requires proof that race was a “motivating factor.”
42 U.S.C. §§ 2000-2(m); see also Univ. of Tex. SW Med. Ctr., 570 U.S. at 348–49.
Like her retaliation claims, Plaintiff seeks to prove discrimination through the
McDonnell-Douglas framework, arguing that Dr. Ghanem’s treatment of Professor
B—a white male—establishes a prima facie case of discrimination. [81] at 28–32.
Just as with a retaliation claim, the McDonnell-Douglas framework remains a viable
part of this Court’s overall analysis in reviewing a prima facie case of discrimination

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under § 1981 and Title VII. See Fields v. Bd. of Ed. Of City of Chi., 928 F.3d 622, 625
(7th Cir. 2019). Under this framework, Plaintiff must establish that: (1) she belongs
to a protected class; (2) she met her employers’ legitimate expectations; (3) she
suffered an adverse employment action; and (4) similarly situated employees outside
of her protected class were treated more favorably. Id. And, as with a retaliation
claim, when the legitimate expectation inquiry remains in dispute, then the prima
facie analysis “merges with the pretext analysis.” Smiley, 714 F.3d at 1002.
Here, Plaintiff fails to present evidence from which a reasonable jury could find
that Defendants’ stated reasons for denying her tenure were mere pretext for a
discriminatory purpose. Plaintiff points to Professor B’s race, arguing that one should
infer a discriminatory motive because Professor B is a white male. Not so. Even if
Dr. Ghanem treated Plaintiff differently than Professor B (and that remains a hotly
disputed issue as discussed above), this alone does not mean that Dr. Ghanem did so
for discriminatory reasons, particularly considering Dr. Ghanem’s support for
Plaintiff prior to the 2018 tenure review.
Plaintiff also argues that the teaching criticism that she faced constitutes “a
manifestation of structural racism at DePaul.” [81] at 12. This conclusory argument
lacks any factual support in the record. First, the teaching criticisms originated from
her students, and thus, her claims of “structural racism” suggest, at the very worst,
that her students were somehow racist. But she must establish that Defendants
discriminated against her, and Plaintiff cites no legal authority that discrimination
by students can be imputed to the student’s school. Second, to the extent that

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Plaintiff argues that her colleagues and Dr. Ghanem discriminated against her by
focusing on her students’ critiques, she offers no evidence for this theory beyond her
own speculation. In short, Plaintiff’s personal suspicions about “structural racism”
in academia cannot create an issue of fact for a jury.
Finally, Plaintiff insists that one can infer a discriminatory motive based upon
their 2017 meeting wherein Dr. Ghanem’s allegedly told her to stop complaining
about discrimination. According to Plaintiff’s version of the facts, Dr. Ghanem’s
comment effectively told her that “good minorities accept racial harassment and
microaggressions, and that Dr. Calvente should comport herself accordingly.” [81] at
31. Even if one believes that Dr. Ghanem told her to stop filing discrimination
complaints, however, nothing in the record suggests that Dr. Ghanem effectively told
Plaintiff that “good minorities accept racial harassment and microaggressions”—once
again, Plaintiff’s suspicions are not evidence.
Overall, even although Plaintiff presented sufficient evidence to proceed to
trial on her retaliation claims, she fails to present evidence to show that Defendants’
stated reasons for denying her tenure were “a cover-up for discrimination.” Koski v.
Standex Intern. Corp., 307 F.3d 672, 677 (7th Cir. 2002). Accordingly, Defendants
are entitled to summary judgment on Plaintiff’s discrimination claims.
3.

Breach of Contract

Finally, the Court turns to Plaintiff’s contract claim. Plaintiff alleges that
DePaul’s Faculty Handbook constitutes a binding contract that Defendants breached
when they denied her tenure. [1] (Count V).

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Under Illinois contract law, which the parties agree governs Plaintiff’s
contract claim, a plaintiff must establish that: (1) a valid contract exists; (2) plaintiff
performed under the contract; (3) defendant breached it; and (4) plaintiff suffered
damages as a result. See Burrell v. City of Mattoon, 378 F.3d 642, 651 (7th Cir. 2004).
For purposes of summary judgment, Defendants do not dispute that the Faculty
Handbook constitutes a contract but argue that Plaintiff cannot establish a breach.
[65] at 34–37.
Plaintiff’s complaint does not specify which Faculty Handbook provisions
Defendants allegedly breached, [1], but Plaintiff’s summary judgment response posits
two breaches: (1) § 6.2, which states that “DePaul University does not tolerate
harassment or discrimination”; and (2) § 3.5.6.3, which provides that the Provost may
overturn the UBPT’s recommendation in “rare instances” and for “compelling
reasons.” [81] at 33; [100] ¶¶ 10, 16.
Plaintiff’s breach of contract claim fails to the extent it relies on § 6.2. This
provision merely states a general policy against discrimination and, as Defendants
correctly note, a general anti-racial discrimination provision in a contract does not
create an independent contractual obligation under Illinois law. See Harris v. Adler
Sch. Of Prof. Psych., 723 N.E.2d 717, 722 (Ill. App. Ct. 1999) (“The Adler School’s
nondiscrimination policy was a statement of adherence to existing law and does not
constitute, and was not, an independent contractual obligation.”). Further, even if it
did, Plaintiff’s discrimination claims do not survive summary judgment for the

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reasons discussed above. Thus, any breach of contract claim based upon alleged
discrimination also fails.
As to § 3.5.6.3, Defendants only argue that the record establishes that Dr.
Ghanem had “compelling reasons” to overturn the UBPT’s recommendation. [101] at
14. They insist that Plaintiff merely disagrees with Dr. Ghanem’s stated reasons,
which does not establish a breach. Id. As set out above, however, there exists a
material issue of fact regarding whether Dr. Ghanem believed the reasons she gave
or whether she, in fact, lied and overruled the UBPT for retaliatory reasons.
Although the parties disagree on what constitutes a “compelling reason,” Defendants
do not argue that retaliation qualifies. 11 Accordingly, Plaintiff’s breach of contract
claim may proceed but only to the extent it remains based on § 3.5.6.3.

Plaintiff argues that “compelling reason” requires the provost to find the UBPT’s recommendation
“was manifestly groundless.” [81] at 33. In support, she cites a September 23, 2020 internal
memorandum from the UBPT to Dr. Ghanem. Id. Defendants attack Plaintiff’s use of this memo,
arguing that she improperly obtained it from a third-party outside of the discovery process and asks
the Court to bar Plaintiff from using it as a sanction for alleged abuse of discovery. [100] at 2. In
response, Plaintiff accuses Defendants of improperly withholding it from her. [104] at 4 & n.3. The
parties’ arguments indicate that this document has been a point of contention since March 14, 2021,
yet neither party previously raised the issue with the Court or otherwise brought a Rule 11 sanctions
motion. Without details on this document, where it came from and what discovery requests may have
called for it, the Court cannot resolve whether one side (or both) engaged in improper discovery tactics.
The Court also will not consider Defendants’ request for sanctions without a properly raised Rule 11
motion. Regardless, the Court’s decision here does not rely on this internal memorandum. To the
extent the parties dispute the use of it at trial, they may raise the issue in a pre-trial motion consistent
with their Rule 11(b) obligations and this Court’s orders.
11

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IV.

Conclusion
For the reasons set out above, the Court grants Defendants’ motion to strike

Dr. Zaeske’s report and testimony [60]; grants in part, and denies in part, Defendants’
Motion for Summary Judgment [45]; and denies Plaintiff’s Motion for Partial
Summary Judgment, [86]. Namely, it grants summary judgment to Defendants on
Plaintiff’s claims for § 1981 discrimination (Count III), Title VII discrimination
(Count IV), and breach of contract (Count V) as to § 6.2 of the Faculty Handbook,
only. Plaintiff may proceed to trial against Defendants on her § 1981 and Title VII
retaliation claims (Count I and II) and on her breach of contract claim (Count V) as
to § 3.5.6.3 of the DePaul Faculty Handbook.
Dated: September 15, 2022

Entered:

____________________________
John Robert Blakey
United States District Judge

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