Tamari v. Southern Illinois University Board of Trustees et al
Filing
63
ORDER GRANTING 49 Motion for Summary Judgment filed by Defendant Board of Trustees of Southern Illinois University. Signed by Judge Nancy J. Rosenstengel on 2/5/2018. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SANDRA TAMARI,
)
)
Plaintiff,
)
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vs.
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)
BOARD OF TRUSTEES OF SOUTHERN )
ILLINOIS UNIVERSITY,
)
)
Defendant.
)
Case No. 3:16-CV-00063-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Sandra Tamari filed this employment discrimination and retaliation case
pursuant to Title VII of the Civil Rights Act of 1964, alleging Southern Illinois University
unlawfully discriminated against her on account of her national origin (see Amended
Complaint at Doc. 23). She also alleged the University retaliated against her for filing an
internal complaint and a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”). On June 1, 2017, Defendant Board of Trustees of
Southern Illinois University (“the University” or “SIU”) moved for summary judgment
(see Docs. 49, 50) on Tamari’s claims. After the motion was fully briefed the parties, the
Court heard oral arguments at a hearing on October 17, 2017. For the reasons set forth
below, the motion is granted.
FACTUAL BACKGROUND
Plaintiff Sandra Tamari began working at SIU in August 2007 as an International
Admissions Specialist within the Department of International Student Services at SIU’s
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Edwardsville campus (“SIUE”) (Doc. 50-1, p. 2, Doc. 50-3). Tamari is a United States
citizen whose national origin is Palestinian (Doc. 59-3, p. 1; Doc. 23). English is Tamari’s
first language, but she is fluent in Arabic (Id.). During her employment with SIU, Tamari
served as an advocate for students from the Middle East (Doc. 59-3, p. 1). According to
Tamari, her advocacy for Middle Eastern students and those who speak Arabic
subjected her to hostility from members of the Office of Admissions (Id.).
Shortly after joining the University, Tamari began attending the International
Team meetings, which focused on international student recruitment (Id. at p. 2). She and
her colleague, Geet Vanaik, represented the international office (Id.). Several members of
the admissions office also attended the meetings (Id.). In 2010, Tamari and Vanaik went
to Scott Belobrajdic, Associate Vice Chancellor of Enrollment Management (and head of
the admissions office), and expressed concern about obstacles the admissions office was
creating regarding recruitment and admission of international students (Id.). After this
meeting, Belobrajdic became personally involved with the International Team, initiating
an effort to develop a three-year plan to improve recruitment of international students
(Id.). Tamari was “significantly involved” in all aspects of this strategic plan to recruit
international students and was generally praised for her good work (See id.).
In 2011, Tamari served on a search committee to select a new Associate Director of
Admissions (Id.). Tamari attests that she filed a complaint with the University after she
witnessed the Director of Admissions, Todd Burrell, manipulating the search to get the
candidate he desired—a white male—as opposed to the other finalist, an
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African-American female (Id.). Soon after making the complaint, Burrell left Tamari out
of the search committee discussions by leaving her off an email message (Id.).
In 2012, SIU hired a new Chancellor, Dr. Julie Furst-Bowe, who sought to increase
the University’s international recruitment efforts (Doc. 50-5, p. 4-5). In Spring 2013,
several new positions were created to advance that goal, including an Assistant Director
of Graduate and International Recruitment (“Spring 2013 Assistant Director position”)
(Id., p. 6, Doc. 50-7). After hearing that Burrell, the Director of Admissions, may have
“pre-selected” a candidate for the Assistant Director position, Tamari and Vanaik asked
Belobrajdic about whether that was true. While he replied that anyone could apply for
the position, he did not deny or refute the allegation that an individual had been
pre-selected (Doc. 59-3, p. 3). After this meeting, Tamari’s supervisor, Ron Schaefer,
made the decision that the international office would no longer be participating in the
International Team meetings and asked Tamari and Vanaik to remove the meetings from
their agendas (Id.).
On March 4, 2013, Tamari applied for the Spring 2013 Assistant Director position
(Doc. 50-8). A search committee, comprised of three Caucasian females, two Caucasian
males, one Filipino male, and one Turkish male, was formed to first select telephone
interviewees, then to narrow the candidates to a smaller group of finalists for on-campus
interviews (Doc. 50-9). The search committee reviewed thirty two applications and
selected ten candidates, including Tamari, for 15-minute telephone interviews
(Docs. 50-10; 50-11).
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Tamari’s phone interview occurred on April 12, 2013. According to Tamari, the
interview was abrupt and rushed (Doc. 59-3, p. 3). She was not asked if she had any
questions for the committee, and she did not believe the committee was interested in
exploring her qualifications for the position (Id.).
Tamari’s interview was digitally recorded by the search committee secretary, Kay
Weis, on a University-issued digital recording device (Doc. 50-12, p. 1). In addition to
Tamari, six other candidates’ interviews were recorded because one of the committee
members could not attend the telephonic interviews that day (Doc. 50-1, p. 8; Doc. 50-12,
p. 1). After the missing committee member listened to the interviews on the digital
recorder, she returned the recorder to Weis. Weis then continued to use the device to
record various meetings in the Enrollment Management Office, eventually recording
over the April 12, 2013 interviews (Doc. 50-12, p. 2). Weis attested that it is impossible to
know when the interview was recorded over due to the high frequency with which she
used the recorder (Id.). She also verified that she did not record over Tamari’s interview
for any improper reason, but rather only to continue using the device (Id.).
After the phone interviews were complete, each member of the search committee
named three finalists he or she believed should move on to the next round of interviews.
No member of the search committee recommended Tamari for an on-campus interview
(Doc. 50-13). Six of the seven committee members attested that they made this
determination after Tamari’s telephone interview performance and after considering the
relative qualifications of the candidates (Id.). The seventh member attested that he
decided not to vote for Tamari after observing that none of the other search committee
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members voted for her and, in an effort to block another candidate he did not believe
was a good fit for the position, decided to support an alternative candidate (Doc. 50-13,
p. 7). All seven committee members verified that they did not consider Tamari’s national
origin at any time during the search process (Doc. 50-13).
Belobrajdic, as the hiring manager, ultimately decided to hire Melissa Mace, who
had previously served as the Acting Director of International Services at another
university (Docs. 50-18, 50-37). Tamari attended Mace’s on-campus interview and recalls
that Mace made a number of factual errors in her interview and exceeded her allotted
presentation time by more than twenty minutes (Doc. 59-3, p. 4). Vanaik also attested
that her review of the finalists’ resumes revealed that Tamari was the most qualified
individual for the position (Doc. 59-1, p. 2). According to Vanaik, nothing other than
national origin discrimination could explain not hiring Tamari for the position (Id.).
Based on her concern that she had been subject to unlawful discrimination,
Tamari went to SIU’s Office of Institutional Compliance (“OIC”) and filed a complaint of
national origin discrimination (Doc. 23, ¶ 19). On June 18, 2013, Tamari met with the
OIC’s Assistant Chancellor and Assistant Director as part of the University’s
investigation of her complaint (Doc. 59-3, p. 4). During this meeting, the Assistant
Chancellor, Paul Pitts, made statements that indicated he did not understand national
origin discrimination. For example, he said discrimination must be overt to meet the
standards of bias under the law (Id.). He then pointed to the skin on his forearm and said
that overt discrimination is someone saying, “I won’t hire you because you are black.”
(Id.). He also told Tamari she was not protected from discrimination because he
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considered her to be white (Id.). Nevertheless, Pitts assured Tamari that all documents,
evidence, and interview recordings had been preserved (Id.).
Tamari subsequently filed a Freedom of Information Act (“FOIA”) request to get
a copy of her phone interview recording, more than two months after her interview. The
SIUE FOIA officer informed Tamari by email on July 1, 2013, that it would “take a while
to get them copied.” (Id.) A couple of weeks after receiving this message, Tamari
received another email message notifying her that the interview recordings in fact were
not saved (Id.).
After completing its investigation into Tamari’s complaint, the University found
insufficient evidence to support Tamari’s allegations of national origin discrimination
(Doc. 50-1, p. 16). On December 26, 2013, Tamari filed a Charge of Discrimination with
the EEOC (“EEOC Charge”) (Doc. 23, ¶ 4). Tamari and Vanaik subsequently were not
permitted to speak directly with employees in the admissions office but rather had to go
through their supervisor, Ron Schaefer (Doc. 59-3, p. 5). According to the University, this
communication restriction applied equally to all members of the international and
admissions teams (Doc. 50-5, p. 9, Doc. 50-37, pp. 1-2).
On March 14, 2014, an opening was posted for the Director of International
Programs (“Spring 2014 Director position”) (Doc. 50-19). Tamari applied for the position
and was selected as one of four finalists after an initial Skype interview (Doc. 50-1, p. 28).
Before any on-campus interviews were conducted, however, the search was canceled at
the direction of the incoming Provost and Vice Chancellor for Academic Affairs
(Doc. 50-21). On June 9, 2014, Tamari received an email message informing her of the
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decision to cancel the search and explaining that the new Provost had “a new plan for
campus internationalization” and “would like to be involved significant in the
restructuring of campus efforts towards this goal.” (Id.). The email message further
stated that the search committee found Tamari’s credentials impressive and would
inform her of future opportunities (Id.).
Pursuant to the incoming Provost’s restructuring of the Office of International
Programs, SIU’s “Office of International Affairs” was created (Doc. 50-22). On January
20, 2015, the position of Executive Director of International Affairs was posted
(Doc. 50-23). The minimum qualifications for the job included a Master’s degree from an
accredited institution and “at least five years of administrative experience in a director
position related to international education in higher education” (Id.). On February 17,
2015, Tamari applied for the Executive Director position (Doc. 50-24). On March 24, 2015,
the Chair of the search committee sent an email message to committee members
indicating the Provost asked that they make absolutely certain that each candidate have
five years of experience explicitly with the title of “director” or “executive director.”
(Doc. 50-25). Based on this criterion, the Chair concluded that Tamari, as well as another
male candidate with only three years of experience as a “director,” did not meet the
requirements of the position and should be removed from the committee’s consideration
(Id.). The committee Chair attested that he did not consider Tamari’s national origin at
any time, including when considering whether she met the minimum qualifications for
the Executive Director position (Doc. 50-26).
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On May 12, 2015, Tamari had dinner with Chancellor Furst-Bowe. In reference to
the ongoing search for the Executive Director of International Affairs, the Chancellor
told Tamari: “I am very sorry this happened to you. You are by far the most qualified.”
(Doc. 59-3, p. 6). According to Tamari, the Chancellor also told Tamari she would “make
things right,” that she knew Tamari had been performing the duties of the director of
international programs, and that she would instruct the Provost to cancel the search and
appoint Tamari to the Executive Director position (Id. at p. 7). In an affidavit, Chancellor
Furst-Bowe stated that while she sympathized with Tamari’s frustration over the hiring
process, she never expressed to Tamari that she believed Tamari was discriminated
against because of her national origin or retaliated against because of any complaints she
made (Doc. 50-32).
After the search committee interviewed the finalists for the Executive Director
position, the Provost determined that none of the candidates had the strengths needed to
begin a new international office (Doc. 50-28). On June 22, 2015, in an email message to
the search committee, the Provost announced the decision not to proceed with the search
(Id.). He also announced that Mary Weishaar, a search committee member and Associate
Dean of the School of Education, Health and Human Behavior, would be appointed
Interim Director (Id.). According to Tamari, Weishaar’s degrees are in education and
special education and she has limited experience in international affairs (Doc. 59-3, p. 6).
Furthermore, no explanation had been provided as to why Weishaar selected for the
position without the required “director” experience (Id.). At a lunch on July 14, 2015,
Chancellor Furst-Bowe told Tamari she was sorry the Provost did not listen to her and
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that her administration had hidden Tamari’s existence and job responsibilities from her
(Id. at p. 7).
After Weishaar was appointed Interim Director, Tamari expressed concern with
the Office of Equal Opportunity, Access, and Title IX Coordination (“EOA”) that
Belobrajdic, a member of the search committee, engaged in discrimination and
retaliation against her and negatively impacted her opportunity advance in the search
(Doc. 50-30). Belobrajdic denied any wrongdoing, noting he was not present when any
discussion about Tamari took place. He also had recused himself from any review of
Tamari to avoid any perceived conflict of interest considering Tamari had already filed
her complaint of national origin discrimination with the University and with the EEOC
(Id.; Doc. 30-5). Based on its review, the EOA determined there was insufficient evidence
to support Tamari’s concerns that discrimination and/or retaliation impacted her
application (Doc. 50-30). Rather, the hiring decisions related to the 2015 Executive
Director position—as well as the Spring 2014 Director position—were influenced by the
Provost’s strategic goals for the Office of International Affairs (Id.). Tamari appealed this
decision to Chancellor Furst-Bowe, who upheld the EOA’s decision while also
recommending Tamari be appointed Assistant Director of International Affairs, a
promotion she received in September 2015 (Doc. 50-31).
On November 6, 2015, Tamari received a Notice of Right to Sue letter from the
EEOC and United States Department of Justice (Doc. 23, ¶ 4). Shortly thereafter, Tamari
applied for the position of Director of Graduate and International Admission
(Doc. 50-34). Tamari again was selected for an initial interview and as a finalist for the
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position (Doc. 50-1, p. 36), but Belobrajdic, the hiring manager, ultimately selected
another candidate, James Monahan, for the position (Doc. 50-36). In his hiring
justification, Belobrajdic stated that if Monahan was not approved to move forward in
the search or if he declined the University’s offer, then Belobrajdic did not find any of the
other three finalists to be acceptable for the director role (Id.).
Although Tamari was not selected for these positions, she did receive several
promotions and raises in annual salary after she filed her OIC complaint and EEOC
Charge (Doc. 50-1, p. 3). Tamari filed this lawsuit on January 20, 2016 (Doc. 1).
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting FED. R.
CIV. P. 56(a)). Once the moving party has set forth the basis for summary judgment, the
burden then shifts to the nonmoving party who must go beyond mere allegations and
offer specific facts showing that there is a genuine issue of fact for trial. FED. R. CIV. P.
56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 232-24 (1986). The nonmoving party must
offer more than “[c]onclusory allegations, unsupported by specific facts,” to establish a
genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
In determining whether a genuine issue of fact exists, the Court must view the
evidence and draw all reasonable inferences in favor of the party opposing the motion.
Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 255 (1986). A “court may not assess the credibility of witnesses,
choose between competing inferences or balance the relative weight of conflicting
evidence . . . .” Reid v. Neighborhood Assistance Corp. of America, 749 F.3d 581, 586 (7th Cir.
2014) (quoting Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005)). No issue
remains for trial “unless there is sufficient evidence favoring the non-moving party for a
jury to return a verdict for that party. If the evidence is merely colorable, or is not
sufficiently probative, summary judgment may be granted.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
DISCUSSION
I.
National Origin Discrimination
Tamari’s national origin discrimination claim is based solely on her allegation
that she was not selected for an on-campus interview in 2013 for the position of Assistant
Director of Graduate and International Recruitment. SIU argues it is entitled to judgment
as a matter of law because Tamari has failed to show that a reasonable factfinder could
conclude the reason she was not selected for the Spring 2013 Assistant Director position
was because of her national origin.
Title VII prohibits employers from discriminating based on “race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The applicable standard at summary
judgment “is simply whether the evidence would permit a reasonable factfinder to
conclude” that the plaintiff’s national origin caused the adverse employment action.
Ennin v. CNH Indus. Am., LLC, 878 F.3d 590, 596 (7th Cir. 2017) (quoting Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016)); Henderson v. Shulkin, No. 17-1074, 2017
WL 6550598, at *4 (7th Cir. Dec. 22, 2017). Although the Seventh Circuit in Ortiz banished
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consideration of “direct” versus “indirect” evidence, a plaintiff may still use the
McDonnell-Douglas burden-shifting test to make the required showing. McKinney v.
Office of Sheriff of Whitley Cty., 866 F.3d 803, 807 (7th Cir. 2017).
The McDonnell Douglas burden-shifting framework requires a plaintiff to carry
“the initial burden of establishing a prima facie case of discrimination.” Id. To establish a
prima facie case of national origin discrimination based on the failure to promote, a
plaintiff must set forth evidence that: (1) she is a member of a protected group; (2) she
was qualified for the position she sought; (3) she was rejected for the position; and (4) the
employee promoted to the position was not a member of the protected group and was
not better qualified for the position. Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 892 (7th Cir.
2016), cert. denied, 137 S. Ct. 1328 (2017); Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th
Cir. 2001). If the plaintiff establishes a prima facie case, the burden shifts to the employer
to articulate a “legitimate, nondiscriminatory reason” for its decision. McKinney, 866
F.3d at 807 (citing McDonnell Douglas, 411 U.S. at 802). If the employer meets this
requirement, the burden then shifts back to the plaintiff, who must produce evidence
“that the legitimate reasons offered by the defendant were not its true reasons, but were
a pretext for discrimination.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143,
120 S. Ct. 2097, 2106 (2000).
To demonstrate pretext, “a plaintiff must show more than that the employer’s
decision was incorrect; the plaintiff must also show the employer lied about its proffered
explanation.” Johnson, 260 F.3d at 732. A plaintiff can demonstrate pretext by showing:
(1) the defendant’s explanation for its decision had no basis in fact; (2) the explanation
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was not the “real” reason; or (3) the reason stated was insufficient to warrant the
allegedly discriminatory action. Id.
Under the standard clarified by the Seventh Circuit in Ortiz and subsequent cases,
the ultimate question in this case is whether the evidence would permit a reasonable
factfinder to conclude that Tamari’s national origin caused her not to be selected for an
on-campus interview for the Spring 2013 Assistant Director position. SIU argues that no
such evidence exists, as Tamari has no proof that she was more qualified for the position
than the candidate who was ultimately hired. Even if Tamari could assert a prima facie
case of national origin discrimination, however, SIU asserts that her claim still fails
because SIU has a legitimate, non-discriminatory reason for not selecting Tamari for an
on-campus interview: the search committee simply did not find her to be worthy of a
second interview when compared to the other candidates following her initial phone
interview.
In response, Tamari argues that individuals who were significantly less qualified
were selected for on-campus interviews, and the only reason offered for her rejection
was that she performed poorly in her phone interview. When Tamari asked that the
recording of her phone interview be preserved, she was told that it would be. But, after
repeatedly being assured that the recording existed and would be preserved, SIU later
told Tamari the recording was erased. Tamari argues that SIU has provided no
reasonable explanation as to how or why the digital recording was lost, and a reasonable
inference from the recording’s disappearance is that it would destroy SIU’s claim that
she performed poorly in the interview. She argues that entering summary judgment for
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Defendant at this stage and on these facts would reward either (1) a negligent failure to
preserve evidence, or (2) willful destruction of essential evidence. The finder of fact may
reach the conclusion that if the recordings had been preserved, the recordings would
reveal an unlawful and discriminatory intent. Thus, summary judgment is unwarranted.
There is no dispute that Tamari is a member of a protected group, she was at least
minimally qualified for the position she sought, and she was rejected for the position.
The only apparent dispute is whether Tamari was more qualified for the position than
the person who was ultimately hired. The Court disagrees with SIU that there is no such
evidence in the record. Geet Vanaik, Tamari’s colleague and the current Lead
Immigration Coordinator at SIU’s Edwardsville campus, attested that her review of the
candidates revealed that Tamari was more qualified than any of the finalists who
received on-campus interviews. SIU has not disputed this evidence with any evidence of
its own. Thus, construing all reasonable inferences in favor of Tamari, the non-movant,
the Court finds that Tamari has established a prima facie case of national origin
discrimination.
The burden now shifts to SIU to provide a legitimate, non-discriminatory reason
for not selecting Tamari for an on-campus interview. According to SIU, that reason is
simply that the search committee thought Tamari performed poorly on her phone
interview. Indeed, after completing the phone interviews, no member of the search
committee recommended Tamari for an on-campus interview (Doc. 50-13). Six of the
seven committee members verified that they made this determination after Tamari’s
telephone interview performance and after considering the relative qualifications of the
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candidates, while the seventh decided to support another candidate as a strategic
maneuver (Id., Doc. 50-13, p. 7). Thus, SIU has provided a legitimate, non-discriminatory
reason for not choosing Tamari to advance in the hiring process.
The burden now shifts back to Tamari to prove that SIU’s reason for not selecting
her is merely a pretext for intentional national origin discrimination. “Pretext means a
dishonest explanation, a lie rather than an oddity or an error. Pretext is more than a
mistake on the part of the employer; it is a phony excuse. Showing pretext requires proof
that the defendant’s explanation is unworthy of credence.” Faas v. Sears, Roebuck & Co.,
532 F.3d 633, 642 (7th Cir. 2008). Courts have found evidence of pretext where the
employer gives shifting or inconsistent explanations for the challenged employment
decision, Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 579 (7th Cir. 2003),
where there is evidence of behavior toward or comments directed at other employees in
the protected group, Burks v. Union Pac. R. Co., 793 F.3d 694, 700 (7th Cir. 2015), or when
an employment decision is reached in an “unusual” way, Chaney v. Plainfield Healthcare
Ctr., 612 F.3d 908, 916 (7th Cir. 2010).
This is where Tamari’s claim fails, as she has no evidence that the University’s
proffered reason was pretextual. She has no evidence the committee lied in explaining
that her performance on the phone interview did not warrant an on-campus interview;
thus, the committee members’ affidavits stating that they never considered Tamari’s
national origin during the search process remain uncontroverted.
Presumably recognizing she has no evidence of pretext, Tamari instead focuses
on the “missing” digital recording of her interview. She argues that SIU has provided no
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reasonable explanation for its loss and has not revealed whether any efforts were taken
to recover the digital recordings. Tamari avers that one reasonable inference from the
missing evidence is that the recording would “destroy defendant[’s] assertion that the
plaintiff was not selected due to her performance in the phone interview.” She asserts
that the finder of fact may conclude that, if the recording had been preserved, it would
reveal an unlawful and discriminatory intent. Tamari argues that whether to believe or
reject the University’s proffered explanation for the destruction of the evidence is not a
credibility determination that can be made at summary judgment.
First, the Court notes that there is evidence in the record demonstrating a
“reasonable explanation” for the loss of the digital recording. Kay Weis, the search
committee’s secretary, verified by affidavit that the April 12, 2013 interviews, including
Tamari’s, was recorded over when she continued to use the device to record meetings in
the Enrollment Management Office (Doc. 50-12, p. 2). Weis further attested that it is
impossible to know when the interview was recorded over due to the high frequency
with which she used the recorder, and that she did not record over Tamari’s interview
for any improper reason (Id.). Tamari has provided no evidence to dispute Weis’s
affidavit.
Second, it is well established that “[a]n employer’s destruction of or inability to
produce a document, standing alone, does not warrant an inference that the document, if
produced, would have contained information adverse to the employer’s case.” Park v.
City of Chi., 297 F.3d 606, 615 (7th Cir. 2002); Everett v. Cook Cty., 655 F.3d 723, 727 (7th Cir.
2011). “Rather, in order to draw an inference that the absent documents contained
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negative information, [the plaintiff] must show that the documents were intentionally
destroyed in bad faith.” Everett, 655 F.3d at 727 (citing Norman–Nunnery v. Madison Area
Technical Coll., 625 F.3d 422, 428 (7th Cir. 2010)). “A document is destroyed in bad faith if
it is destroyed for the purpose of hiding adverse information.” Faas v. Sears, Roebuck &
Co., 532 F.3d 633, 644 (7th Cir. 2008) (citation and quotations omitted). Whether a
defendant acted in bad faith is a question of fact, allowing the trier of fact to draw any
reasonable inference. Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir. 1998).
Thus, a court may infer bad faith from the circumstances of the destruction. Id.
Here, the only evidence Tamari relies on to demonstrate bad faith is the assurance
by Assistant Chancellor that the recording would be preserved—only later to find out it
was not. The testimony of Kay Weis reveals, however, that the interview was not deleted
for the purpose of hiding any adverse information. Instead, she verified that she simply
continued using the recording device, with frequency, and that all of the interviews that
day were recorded over. Moreover, Tamari’s speculation at oral argument that the
recording would have captured any discriminatory comments by the committee before
or after her interview is just that—speculation. Speculation is not enough to defeat
summary judgment. See Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007)
(“inferences that are supported by only speculation or conjecture will not defeat a
summary judgment motion”). Indeed, Tamari admitted she has no evidence that anyone
on the committee was even aware of her national origin. No reasonable factfinder could
infer, from this evidence, that the University destroyed the recording in bad faith.
The University has presented a legitimate, non-discriminatory reason for not
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selecting Tamari for an on-campus interview—her performance in her phone
interview—and Tamari has not presented any evidence that this given reason is a
pretext for discrimination. While she claims the missing recording of her interview
would have revealed the committee’s discriminatory intent, she has no evidence the
recording was intentionally destroyed in bad faith. Her argument that the recording
might have contained some incriminating statements by committee members between
interviews is mere speculation. For these reasons, the University is entitled to summary
judgment on Tamari’s national origin discrimination claim.
II.
Retaliation
Tamari also claims she was not awarded three additional positions for which she
applied in retaliation for the complaint she made to the OIC in 2013 and her EEOC
Charge. She does not allege the filing of this lawsuit in January 2016 was a protected
activity that led to any adverse employment action.
In Title VII retaliation cases, a plaintiff has the burden of producing enough
evidence for a reasonable jury to conclude that (1) she engaged in a statutorily protected
activity; (2) the employer took a materially adverse action against her; and (3) there was
a but-for causal connection between the two. Burton v. Bd. of Regents of Univ. of Wisconsin
Sys., 851 F.3d 690, 695 (7th Cir. 2017) (citing Univ. of Texas Southwestern Med. Ctr. v.
Nassar, 133 S.Ct. 2517, 2533 (2013)). “In the retaliation context, determining whether an
action is materially adverse means inquiring whether it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Boss v.
Castro, 816 F.3d 910, 918 (7th Cir. 2016) (citing Burlington N. & Santa Fe Ry. Co. v. White,
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548 U.S. 53, 68 (2006)).
The inquiry in retaliation cases is whether the record contains “sufficient evidence
to permit a reasonable fact finder to conclude that retaliatory motive caused the [adverse
employment action].” Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir. 2017).
“Without direct evidence of causation, [the plaintiff] must rely on circumstantial
evidence like suspicious timing, ambiguous statements, treatment of similarly-situated
employees, and any other relevant information that could permit an inference of
retaliation. Burton, 851 F.3d at 697 (citing Lambert v. Peri Formworks Sys., Inc., 723 F.3d 863,
869 (7th Cir. 2013)). Where the defendant produces non-retaliatory reasons for its
conduct, the plaintiff must show that the proffered reasons are pretextual. Id.
A.
Spring 2014 Director Position
With regard to the Spring 2014 Director position, the University argues there is no
evidence that Tamari’s 2013 complaints were the “but for” cause of her not getting the
job. Tamari was selected as a finalist for the position but, before any finalists were
interviewed, the incoming Provost chose to cancel the search so he could be more
involved in the process of reorganizing the International Programs Office into the
International Affairs Office. Furthermore, Tamari has admitted she has no proof that the
Provost was even aware of her OIC complaint or EEOC Charge when he decided to
cancel the search. And, even if Tamari were to rely on circumstantial evidence such as
suspicious timing, her argument would still fail based because there was nothing
suspicious about the timing when the search was canceled six months after she filed her
complaint.
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In response, Tamari makes no attempt to show that her complaints were the
but-for cause of the Provost canceling the search. She also makes no attempt to argue
that any circumstantial evidence supports an inference of retaliation. Instead, she asserts
that the Court cannot look at each hiring decision individually, but rather must consider
the “totality of the evidence” and whether it supports a showing of retaliation. As the
University points out, however, the case Tamari relies on for this proposition involved a
post-trial motion for judgment as a matter of law following a jury verdict, in which the
court considered whether the totality of the evidence supported a verdict of intentional
discrimination. See Sheehan v. Dolen Corp., 173 F.3d 1039, 1043 (7th Cir. 1999). The
dispositive question on summary judgment, however, is whether a reasonable jury
could find a but-for causal link between the protected activity and adverse action at
issue. Tamari has all but conceded there is no such link with regard to the Spring 2014
Director position. Thus, SIU is entitled to summary judgment with regard to this claim.
B.
Spring 2015 Executive Director Position
SIU next argues there is no evidence of retaliation with regard to the Spring 2015
Executive Director position. SIU contends Tamari simply did not have at least five years
of administrative experience in a director position, as stated in the minimum
qualifications for the position. She was not the only candidate eliminated for this reason,
as another male candidate was also excluded from the search because he only had three
years of experience as a director. The Chair of the search committee, Dr. Michael Shaw,
provided an affidavit verifying this was the reason Tamari was not interviewed
(Doc. 50-26). Shaw also attested that no one on the search committee considered any
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complaints by Tamari in reaching this conclusion (Id.).
In response, Tamari refers the Court to an email message from Shaw to the search
committee, which stated: “[T]he Provost has asked that we make absolutely certain that
each candidate has had 5 years of experience explicitly with the title of ‘director’ or
‘executive director.’ This criterion is very clearly stated in the position description . . . so
this is a reasonable request.” (Doc. 50-25). Tamari argues this email message
demonstrates a specific and unlawful intent to eliminate Tamari from consideration for
the position because the job posting itself does not require an “explicit” title of director.
Tamari claims this email message demonstrates that the University’s proffered reason is
merely pretext.
The Court does not find this email message to be the smoking gun that Tamari
claims it is. The official job posting (Doc. 50-23) states, in relevant part: “The successful
candidate will have . . . at least five years of administrative experience in a director
position related to international education in higher education.” (emphasis added).
Because the job posting specifically notified applicants that the position required five
years of experience in a “director position,” it was not unreasonable, or “fishy” as
Tamari argues, for the Provost to ask the committee to narrow the list of candidates to
those who have the required experience. It certainly is not evidence of retaliation, as
Tamari does not dispute she has never held the title of director. While Tamari asserts it is
“irrational” that SIU would exclude an applicant who is otherwise qualified for the
position just because they have not held an explicit job title, the Seventh Circuit has
frequently remarked that the court is “not a super-personnel board charged with
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evaluating the general quality of employment decisions.” Brewer v. Bd. of Trustees of Univ.
of IL, 479 F.3d 908, 922 (7th Cir. 2007).
It is true that, after the search committee interviewed the finalists for the
Executive Director position, the Provost determined none of the candidates had the
strengths needed to begin a new international office (Doc. 50-28). As a result, the Provost
discontinued the search and named Mary Weishaar, a search committee member and
Associate Dean, as Interim Director (Id.). Weishaar, whose degrees are in education and
special education, had no director-level experience when she was appointed. Tamari
points to this fact as further demonstrating the pretextual nature of the “director”
requirement. 1 As the University points out, however, Weishaar was appointed well
after Tamari was removed from the search and initially on an interim basis after the
Provost was unsatisfied with any of the finalists. And while there is some evidence that
Chancellor Furst-Bowe told Tamari—after she was disqualified from the search due to
her lack of experience as a director—that she was “by far the most qualified,” the
Chancellor also attested that she never expressed any belief that Tamari was being
retaliated against because of her complaints. Evidence that Weishaar was appointed
after the failed search and that the Chancellor sympathized with Tamari’s frustration
over the hiring process is insufficient to permit a reasonable factfinder to conclude that
Tamari was disqualified from the position in retaliation for her 2013 OIC complaint and
EEOC Charge. Accordingly, SIU is entitled to summary judgment on this claim.
Tamari also cites to Weishaar’s deposition testimony several times (without reference to any page
numbers), but did not actually include the deposition transcript as an exhibit to her summary judgment
response. SIU did include Weishaar’s deposition as an exhibit, but only the pages relevant to its argument.
The portions cited by Tamari were not attached as summary judgment evidence.
1
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C.
Winter 2016 Director of Graduate and International Admission Position
SIU next asserts that Tamari cannot support a retaliation claim with regard to the
Winter 2016 Director of Graduate and International Admission position. SIU argues
Tamari simply was not the most qualified candidate in the opinion of the hiring
manager, Scott Belobrajdic, and Tamari has not put forth any evidence to meet the high
burden that “but for” her complaints, she would have been selected for the position. SIU
further asserts Tamari cannot show that the person selected for the job was not qualified
for the position or that Tamari was better qualified. Lastly, SIU notes that Belobrajdic
testified he never considered Tamari’s complaints when he made his hiring decision.
Tamari’s response notes that her EEOC Charge was against Belobrajdic 2 and that
he rejected her for the Winter 2016 Director position within thirty days of her filing this
lawsuit. She claims that filing her complaint in federal court is a “further protected
activity and a continuation of the filing of the EEOC charge.” Tamari also asserts that
Belobrajdic’s “hiring justification” memorandum states that if the candidate selected
declined the University’s offer, Belobrajdic did not find any of the other three finalists
(including Tamari) to be acceptable for the Director role. Tamari avers this further
supports a reasonable inference of retaliation.
The Court does not find Tamari’s arguments persuasive. She did not plead
retaliation for filing the complaint in this matter, despite filing an amended complaint
well after she was rejected for the Winter 2016 Director position. Because Tamari did not
plead this claim, the Court will not consider it. See Colbert v. City of Chicago, 851 F.3d 649,
The EEOC Charge was never filed with the complaint or as an exhibit, so the Court is unaware of what
exactly was contained in the charge.
2
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657 (7th Cir. 2017), cert. denied sub nom. Colbert v. City of Chicago, Ill., No. 17-595, 2018 WL
311364 (U.S. Jan. 8, 2018) (plaintiff who did not adequately plead his claims could not
introduce them in response to defendants’ motion for summary judgment).
Furthermore, the Court fails to see how Belobrajdic’s hiring justification
memorandum could cause a reasonable factfinder to conclude that the decision not to
hire Tamari was motivated by retaliation. In fact, Belobrajdic’s hiring justification
discusses the selected candidate’s numerous qualifications for the job. While Belobrajdic
found Tamari and two others “unacceptable” for the position, he also testified he did not
consider Tamari’s complaints in making his hiring decision. Because Tamari has not
come forth with any evidence suggesting that the hiring justification was pretext for a
retaliatory motive, summary judgment is warranted on this claim.
D.
Other Retaliatory Acts
Finally, Tamari claims that after she reported the alleged national origin
discrimination, she was excluded from campus-wide activities, prohibited from
communicating with individuals in the admissions office, and subjected to treatment
that made it more difficult for her to perform her normal job duties (Doc. 23, ¶ 26). At her
deposition, Tamari testified that after filing her complaint, she was disinvited from the
International Team meetings (Doc. 50-1, p. 22). She further testified she has been
retaliated against by not being allowed to thrive in her career or be part of a management
team, and that the former Vice Chancellor for Student Affairs, Dr. Narbeth Emmanuel,
said she was “marked.” In her response to summary judgment, however, Tamari only
mentions the prohibition against speaking directly with members of the admissions
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office. Thus, her claims regarding these other alleged adverse employment actions have
been waived. See Burton, 851 F.3d at 695 (a plaintiff has “the burden of identifying
protected activities and materially adverse actions in opposition to summary judgment
before the district court” and the failure to do so waives those arguments).
The University first argues that the decision to prohibit communication between
the two teams does not constitute an adverse employment action that would support a
claim of retaliation, as it is, at most, a “commonplace management decision” and an
example of a “petty slight[] or minor annoyance[] that often take[s] place at work and
that all employees experience.” See Burton, 851 F.3d at 696. Specifically, the University
argues that the communication directive applied not just to Tamari but to all members of
the international staff and admissions staff. Both Belobrajdic and Todd Burrell, the
Director of Admissions, testified in their depositions that everyone in admissions and in
international affairs was directed by Dr. Emmanuel to communicate with each other
only through their supervisors (Doc. 50-5, p. 9, Doc. 50-37, pp. 1-2). Tamari also testified
that she was told by Dr. Emmanuel that he “believed our two teams, meaning
International Programs and Admissions, should get out of the sandbox until we could
all calm down.” (Doc. 50-1, p. 23). Tamari took that statement to mean that Dr.
Emmanuel thought there was unprofessional communication going on between the two
groups (Id.). Thus, according to the University, this was a management decision meant
to reduce the tension between these employees.
Second, the University argues that Tamari has not shown a causal connection
between the restriction on communication and her complaints of discrimination. Tamari
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has presented no evidence that the decision was not made for appropriate and
legitimate, non-retaliatory reasons.
Tamari’s only response to this argument is to claim there is a genuine issue of
material fact with regard to the University’s claim that the communication directive
applied equally to all members of the international and admissions teams. Tamari cites
the affidavit provided by Vanaik, wherein she attests:
This prohibition on speaking with admission staff interfered with my
ability and Sandra’s ability to perform our job duties, labelled us pariah
and removed us from the admissions team. I know as an absolute fact that
a similar prohibition was not placed on admissions staff. I have read
Belobrajdic’s deposition and I have read his Affidavit in this matter; I have
seen that he claims that admissions staff were subject to the same
communication restrictions as was imposed on Sandra Tamari and me; this
testimony/assertion is not truthful.
(Doc. 59-1, p. 5). Tamari does not refute the University’s argument that the
communication directive was not an adverse employment action.
In Burton, the Seventh Circuit stated that “not everything that makes an employee
unhappy is an actionable adverse action.” Burton, 851 F.3d at 696. Rather, “an adverse
action is one that a reasonable employee would find to be materially adverse such that
the employee would be dissuaded from engaging in the protected activity.” Id. (quoting
Silverman v. Bd. of Educ., 637 F.3d 729, 740 (7th Cir. 2011). “An employee must suffer
something more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Boss v. Castro, 816 F.3d 910, 918–19 (7th Cir. 2016) (citation omitted).
In this case, the Court agrees with the University that Tamari has not shown an
adverse employment action. Even ignoring SIU’s evidence and assuming the
communication restriction applied only to Tamari and Vanaik, the only evidence in the
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record demonstrating any effect this restriction had is the affidavit of Vanaik, in which
she states that the prohibition interfered with their ability to perform their job duties,
labelled them pariahs, and removed them from the admissions team. But none of these
alleged consequences are anything more than a mere inconvenience or a temporary
alteration of Tamari’s responsibilities. Tamari was not technically part of the admissions
team, and she could still communicate with admissions through her supervisor.
The Court finds the restriction to be nothing more than a “commonplace
management decision” meant to calm the tension that had arisen between the two
offices. Did that tension arise out of Tamari’s complaint? Maybe. The record doesn’t
reveal why the two offices were engaging in unprofessional communication. But the fact
that the University wanted to ease those tensions, especially after an employee has
alleged discrimination, does not make the decision retaliatory. Because no reasonable
employee would be dissuaded by the communication restriction from engaging in
protected activity, Tamari’s retaliation claim must fail.
CONCLUSION
Plaintiff Sandra Tamari has failed to present sufficient evidence to permit a
reasonable factfinder to conclude that she was not selected for an on-campus interview
for the Spring 2013 Assistant Director position because of her national origin.
Furthermore, she has failed to demonstrate that her complaint with the Office of
Institutional Compliance or her EEOC Charge of Discrimination caused the University
to take a materially adverse action against her. For these reasons, the Court GRANTS
the Motion for Summary Judgment (Doc. 49) filed by Defendant Board of Trustees of
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Southern Illinois University. The Clerk of Court is DIRECTED to enter judgment in
favor of Defendant.
IT IS SO ORDERED.
DATED: February 5, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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