HAYNES v. INDIANA UNIVERSITY et al
ORDER - The Court GRANTS Defendants' 117 Motion to Strike. Dr. Haynes' 148 Surreply Motion is DENIED as MOOT. Further, the Court STRIKES the full expert reports of Drs. Perna and Greenwald submitted with Dr. Haynes' Surreply in O pposition. Dkts. 161-2, 161-3. Dr. Haynes' 165 Motion to Reconsider is GRANTED in part and DENIED in part. Finally, Defendants' 66 Motion for Summary Judgment is GRANTED. (See Order.) Signed by Judge Larry J. McKinney on 8/18/2017. (GSO)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
RAY K. HAYNES Ph.D.,
THE BOARD OF TRUSTEES OF
INDIANA UNIVERSITY, et al.
Before the Court are various motions filed by both parties. Defendants have filed
a Motion for Summary Judgment (Dkt. 66) and Motion to Strike Designation of Evidence
Report of Dr. Laura W. Perna (“Motion to Strike”) (Dkt. 117). Plaintiff Dr. Ray Haynes has
filed a Motion for leave to File Surreply in Opposition to Defendants’ Motion to Strike
(“Surreply Motion”) (Dkt. 148) and a Motion for Relief Under Rule 60 (“Motion to
Reconsider”) (Dkt. 165). Dr. Haynes, who is African American, has alleged that the
Defendants racially discriminated against him when they denied him tenure. Dkt. 1.
Defendants claim that Dr. Haynes has failed to establish any nexus between the denial
of his tenure and his race. Defendants also ask the Court to strike Dr. Perna’s expert
report submitted with Dr. Haynes’ Response in Opposition to Motion for Summary
Judgment. Dkt. 94. The Court will address each motion in turn.
A. DR. HAYNES’ APPOINTMENT
The facts most favorable to Haynes are as follows:
Indiana University (the
“University”) hired Dr. Haynes on May 21, 2008, as an assistant professor in the
Instructional Systems Technology Department (the “IST Department”) of the School of
Education. Dkt. 67 at 3. A portion of Dr. Haynes’ salary was funded by the Strategic
Recruitment Fund, the purpose of which is “to facilitate the recruitment of
underrepresented minorities and women into the professoriate at Indiana University
Bloomington, especially in areas where their presence has been traditionally
marginalized.” Dkts. 68-5; 68-6; 68-7. There are no African American males in the School
of Education. Dkt. 102-5 at 29-30. Dr. Haynes’ initial appointment was for three academic
years from August 1, 2008, to May 31, 2011. Dkt. 68-10. The University reappointed Dr.
Haynes in one-year terms from 2011 through 2015. Dkt. 68-12. Dr. Haynes was given
a six-year probationary period at the end of which a tenure decision would be made. Dkt.
68-13. During his time there, Dr. Haynes was one of two African Americans in the School
of Education on track for tenure. Dkt. 102-12 at 3.
The IST Department evaluated Dr. Haynes on an annual basis. Dkt. 68-11 at 32.
The third-year review, which is conducted by a three-person review committee, “is an
opportunity to obtain feedback on the tenure track faculty member’s progress toward
tenure.” Dkt. 68-16 at 1. In Dr. Haynes’ third-year review, the committee stated that “the
consensus of the entire committee is that Dr. Haynes has not done an adequate job of
providing evidence of having made sufficient progress toward tenure that we would
expect for a faculty member completing his third full year at Indiana University.” Dkt. 68-
15 at 1. It also noted that “should his performance and productivity not improve during
the next three years … he will have an extremely difficult time making an adequate case
for tenure and promotion.” Dkt. 68-15 at 1. To improve, the committee recommended
that Dr. Haynes increase the amount of empirical research pieces, rewrite his candidate
statement, and provide evidence of continuous improvement in teaching. Dkt. 8-15 at 13.
B. DR. HAYNES’ EXPERIENCE AT THE UNIVERSITY
Dr. Haynes claims that he felt marginalized by the School of Education faculty and
felt as though he was not a part of the “in” group. Dkt. 102-12 at 2-3. He also states that
his assigned mentor, Barbara Bichelmeyer, was rarely available to him because of her
Dkt. 102-12 at 3. Nonetheless, Bichelmeyer believed Dr.
Haynes to be a “phenomenal classroom teacher” who “did an excellent job of being in the
classroom and motivating his students.” Dkt. 102-2 at 13. Bichelmeyer also indicated,
however, that Dr. Haynes had issues “giving timely feedback to students in an online
environment.” Dkt. 102-2 at 13. Dr. Haynes felt that Dr. Thomas Brush, the chair of his
department, had a “standoffish” disposition towards him. Dkt. 102-8 at 32.
C. THE UNIVERSITY’S TENURE PROCESS
The standards for tenure at the Bloomington campus are set forth in the Guidelines
for Tenure and Promotion Reviews at Indiana University Bloomington (“Guidelines”). Dkt.
68-20. The Guidelines set forth the mechanisms for reviewing a candidates tenure
application and state, “Decisions about tenure and promotion are reached through the
comprehensive and rigorous peer review of achievements and promise.” Dkt. 68-20.
Candidates for tenure are evaluated on three areas: (1) research/creative activity;
(2) teaching; and (3) service/engagement.
Dkt. 68-20 at 3.
To achieve tenure, a
candidate must be rated excellent in one of the three categories and receive at least a
satisfactory/effective rating in the other two. Dkt. 68-20 at 3. The University’s School of
Education maintains its own criteria for evaluating each category. Dkt. 68-19 at 7-8. To
achieve an excellence rating in research, which is the area chosen by Dr. Haynes,
requires “[e]vidence that the faculty member is beginning to establish a national and/or
international reputation as an original contributor through research.” Dkt. 68-19 at 7.
A tenure candidate and the department chair, in Dr. Haynes’ case Dr. Brush, work
together to assemble the candidate’s dossier, which includes a curriculum vitae, a
personal statement, and a list of twelve prospective external reviewers. Dkt. 68-20 at 4,
9. The Guidelines require submission of at least six evaluative letters from external
reviewers. Dkt. 68-20 at 5. The external reviewers should be leaders in the candidate’s
field and hold an academic appointment at a peer institution. Dkt. 68-20 at 5.
The review process begins at the candidate’s department, then proceeds to the
school level, and then finishes at the campus level. Dkt. 68-20 at 1. A faculty review
committee writes a substantive report evaluating the candidate’s performance in
research, teaching, and service, and votes to recommend or deny tenure. Dkt. 68-20 at
1. Following this report, the appropriate administrator (i.e. chair, dean, vice provost)
provides a separate substantive evaluation and recommendation.
Dkt. 68-20 at 1.
Finally, the Vice Provost for Faculty & Academic Affairs prepares the final evaluation and
recommendation for the Provost and the President of the University, who in turn make a
recommendation to the Board of Trustees. Dkt. 68-20 at 1.
D. DR. HAYNES’ TENURE CANDIDACY
Dr. Haynes chose research as the performance area in which he believed he
excelled. Dkt. 68-11 at 60. Dr. Haynes was to submit his curriculum vitae, a personal
narrative statement, and a list of twelve external reviewers by April 13, 2013. Dkt. 68-14
at 141; Dkt. 68-12 at 157.
Dr. Haynes’ initial list of twelve external reviewers was divided into two groups of
six: (1) “Haynes’ List of External Reviewers” and (2) “IST Department Chair’s List of
External Reviewers.” Dkt. 68-4 at 201. Nonetheless, Dr. Haynes personally chose all
twelve external reviewers on the list. Dkt. 68-11 at 65. Dr. Haynes submitted his dossier
to Jane Kaho, assistant to Executive Associate Dean Joyce Alexander, on April 23, 2013.
Dr. Joyce Alexander was responsible for managing the tenure process but did not
vote on tenure candidates. Dkt. 68-3 at 65-66. Her task was to “move the process along”
but “not to pass judgment.” Dkt. 102-1 at 97, 187. Part of her duties was to facilitate the
external review process. Dkt. 68-3 at 67; 68-4 at 155-57. Dr. Alexander handled the
external review process for both Dr. Haynes and Dr. Yonjoo Cho, another assistant
professor in the IST Department who applied for tenure at the same time as Dr. Haynes.
Dkt. 68-4 at 42; 68-11 at 55. After receiving Dr. Haynes and Dr. Cho’s lists of twelve
external reviewers, Dr. Alexander noticed that six of the names on each candidates’ lists
overlapped. Dkt. 68-4 at 35-36, 41. To avoid asking the same individuals to review both
Dr. Cho and Dr. Haynes, Dr. Alexander assigned the overlapped reviewers to one
candidate or the other. Dkt. 68-4 at 35, 39, 66-69. This left nine individuals for Dr. Haynes
and nine individuals for Dr. Cho from whom to request a review. Dkt. 68-20 at 46.
On May 22, 3013, Dr. Alexander requested that Dr. Haynes and Dr. Thomas Brush
submit additional names for potential external reviewers because only one of the nine
individuals for Dr. Haynes agreed to write a review. Dkt. 68-4 at 70-71, 206-07. On June
5, 2013, Dr. Brush emailed Dr. Haynes to determine whether he had thought about any
additional external reviewers for his case. Dkt. 68-24 at 3. Dr. Brush provided five names
for Dr. Haynes to consider: (1) Dr. Patricia Hardre; (2) Dr. Doohun Lim; (3) Dr. Rob
Branch; (4) Dr. Rita Richey; and (5) Dr. Andrew Gibbons. Dkt. 68-14 at 249; Dkt 68-24,
Ex. A. In response, Dr. Haynes submitted his second list to Dr. Brush on June 7, 2013;
the list included four of the individuals suggested by Dr. Brush (Dr. Hardre, Dr. Richey,
Dr. Branch, and Dr. Gibbons), excluded Dr. Lim, and added Dr. Tonnette Rocco and Dr.
Dkt. 68-11 at 67-69, 72-75.
Dr. Brush forwarded this list to Dr.
Alexander on June 8, 2013. Dkt. 68-24 at 3.
On August 26, 2013, Dr. Alexander requested three more external reviewers for
Dr. Haynes due to one reviewer backing out at the last minute. Dkt. 68-4 at 100-01, 119;
Dkt. 68-24 at 3. Dr. Brush submitted the third list of external reviewers to Dr. Alexander
on August 28, 2013, which included three individuals selected by Dr. Haynes and two
suggested by Dr. Brush. Dkt. 68-11 at 77-80; Dkt. 68-24, Ex. C.
Ultimately, six individuals accepted the invitation to review Dr. Haynes’ application
for tenure and submit an external review letter: (1) Dr. Frances Kochan; (2) Dr. Patricia
Hardre; (3) Dr. Robert Branch; (4) Dr. Andrew Gibbons; (5) Dr. Tonette Rocco; and (6)
Dr. Frederick Nafukho. Dkt. 68-4, Ex. 70; 68-11 at 81. 1
Dr. Haynes claims that two of Dr. Brush’s proposed external reviewers, Drs. Gibbons
and Hardre, were known to have a negative reputation. Dkt. 94 at 6. Dr. Haynes cites
only one email that states that Dr. Hardre’s external review of Dr. Haynes was “pretty
The external reviewers stated, in part:
(1) Dr. Kochan: I cannot speak highly enough about the research work that Dr.
Haynes has done. The quantity and quality of work are extraordinary; the breadth of the
work is extensive; the importance of the work is without question. … I ranked his teaching
as excellent, his service as very good, and his research as beyond excellent to superior.
Dkt. 95-24 at 3-4.
(2) Dr. Hardre: The tenor of the candidate’s personal statement communicates
great effort to convince readers that his work is of a caliber higher than any other evidence
offered places it. While claiming its excellence in subjective terms, he does not offer
much standardized or comparable evidence of its meeting an objective standard. I would
place this candidate’s overall research performance in a grey area of clearly satisfactory,
but not clearly excellent. I wish that I could find more to recommend this candidate, and
he may indeed attain excellence and national leadership in his field, but considered in
light of the criteria provided, and in comparison to candidates at peer institutions, he does
not at this time appear clearly superior. Dkt. 95-25 at 3.
(3) Dr. Branch: Dr. Haynes’ record of publications and presentations at scholarly
forums in educational technology would be considered above average for a peer faculty
member at most universities with which I am familiar. However, his scholarship in the
area of human resources development exceeds expectations [and] should be regarded
as exemplary. … Overall, Dr. Haynes has demonstrated an ability to teach, conduct
research, advise students, develop program curricula, and provide service to the
university and community. Dr. Haynes would have my enthusiastic support and
promotion to the rank of Associate Professor if he were at the University of Georgia. Dkt.
96-1 at 2.
(4) Dr. Rocco: There is ample evidence in the materials provided to me to state
that Dr. Haynes has achieved excellence in his research and is on his way to becoming
a leader in mentoring research. The materials provided do not give me enough
information to rate Dr. Haynes as excellent in teaching and service though I suspect that
I might be so inclined if I had the necessary information. … Overall, I would recommend
Dr. Haynes for tenure and promotion. Dkt. 96-2 at 3.
(5): Dr. Gibbons: Overall, I feel that a person with Dr. Haynes’ performance
record would receive tenure with rank advancement at schools comparable to Indiana
University… Given my limited knowledge of HRD literature, I believe Dr. Haynes has
tough and with kind of an attitude” and that she is “incredibly harsh and repetitively so;
almost unprofessionally.” Dkt. 96-6. This email chain does not, however, establish
anything to establish that Dr. Hardre was “known” to be a negative reviewer nor does it
state anything relating to Dr. Hardre’s reputation as a reviewer; rather, it reflects on her
review of Dr. Haynes’ dossier. Accordingly, the Court will disregard the assertion that Dr.
Brush knew that these two individuals had negative reputations.
placed his work in a variety of reputable sources. … I feel Dr. Haynes has a promising
future. I can support his application for tenure and rank advancement. Dkt. 96-3 at 1-2.
(6) Dr. Nafukho: I am familiar with Dr. Haynes’ scholarly work … I can state
without reservation that his work is positively impacting the fields of human resource
development, management and higher education. … Dr. Haynes has identified a research
focus that is critical to the success of the fields of HRD and Management. … Compared
to his peers in the field of HRD …, his scholarly record is above average and in my
opinion, would be promoted to the rank of Associate Professor with tenure in my own
institution. Dkt. 96-4 at 2-3.
E. IST DEPARTMENT REVIEW OF DR. HAYNES’ APPLICATION
On September 6, 2013, the tenured faculty in the IST Department reviewed and
voted on the merits of both Dr. Haynes and Dr. Cho’s dossiers.
Dkt. 68-4 at 130; Dkt.
68-25. Dr. Frank DiSilvestro presented Dr. Haynes’ case, but had never presented a
case for tenure prior to Dr. Haynes. Dtk. 68-11 at 59; Dkt. 100-7. Four of the tenured
faculty voted in favor of tenure for Dr. Haynes and two voted against. Dkt. 95-14 at 2.
The next step was the recommendation of Dr. Brush, who was the Chair of the IST
Department. Dkt. 68-11 at 104-05. Dr. Brush noted in his recommendation that the
“committee noted some areas for improvement in both research and teaching, but the
majority of the faculty in IST still believe that Dr. Haynes has met the criteria for promotion
and tenure at Indiana University.” Dkt. 68-26. He concluded that “the majority vote by
the primary committee indicates that Dr. Haynes has attained excellence in research and
satisfactory in teaching and service. I support the faculty recommendation to award
promotion to Associate Professor with tenure to Dr. Haynes.” Dkt. 68-26.
In early November 2013, upon Dr. Alexander’s request, Dr. Brush submitted
revised summaries of the votes for both Dr. Cho and Dr. Haynes’ tenure applications.
Dkt. 68-24 at 4. The summaries were approved by all IST Department members and
were added to the dossiers of each candidate. Dkt 68-14 at 153-54, 157-58, 162, 212;
Dkt. 68-27; Dkt. 68-24 at 4.
F. SCHOOL OF EDUCATION’S REVIEW OF DR. HAYNES’ APPLICATION
In early October 2013, Dr. Haynes’ dossier was reviewed and voted on by
members of the School of Education Promotion, Tenure, and Contracts Committee (the
“School Committee”). Dkt. 68-26 at 3. The School Committee chose Dr. Krista Glazewski
to present Dr. Haynes’ case. Dkt. 102-5 at 39. Dr. Glazewski admitted that she was not
“at all” familiar with Dr. Haynes’ specialty. Dkt. 96-11 at 1. The School Committee voted
six against and three for granting tenure to Dr. Haynes. Dkt. 68-29.
On October 22, 2013, the School Committee prepared a written memorandum of
its findings and submitted it to the Dean of the School of Education, Gerardo Gonzalez.
Dkt. 68-29 at 1. The memorandum noted that, with respect to research, the School
Committee voted six to three against tenure and stated, “Dr. Haynes has published eight
peer-reviewed publications (five as first author) and three book chapters” but also
“questioned the extent of Dr. Haynes’s impact based on low citation numbers and low
numbers of publications in high-quality journals.” Dkt. 68-29 at 5-6, 9. The School
committee had the same vote with respect to teaching, noting that “Dr. Haynes’s teaching
evaluations have been mixed, and particularly low in the online courses.” Dkt. 68-29 at
6-7. The School Committee further explained that “his evaluations have not shown
significant improvement over the years and comments from some students indicated that
Dr. Haynes sometimes is unresponsive to emails and questions about course
assignments.” Dkt. 68-29 at 7. Finally, the School Committee gave Dr. Haynes a
satisfactory rating in service. Dkt. 68-29 at 8.
On November 20, 2013, after conducting his own independent review, Dean
Gonzalez prepared a detailed written summary of his findings and recommended against
granting Dr. Haynes tenure. Dkt. 68-31. Dean Gonzalez concluded that Dr. Haynes did
not satisfy the criteria for tenure in research and teaching. Dkt. 68-3 at 193; Dkt. 68-31.
G. DR. HAYNES’ REBUTTAL EVIDENCE
On November 20, 2013, Dr. Alexander drafted the initial letter from Dean Gonzalez
to Dr. Haynes denying him tenure and requested that Dean Gonzalez edit it. Dkt. 96-51.
Dean Gonzalez replied on November 26, 2013, “Sorry for the delay in getting back to you
on this one. I’ve really had to think about it, but in the end I just had to agree with the
majority of the School’s Committee. … Let’s hold it as long as we can to see if anything
new emerges.” Dkt. 97-18 at 1. On December 10, 2013, Dean Gonzalez informed Dr.
Haynes that he and the School Committee voted against his tenure. Dkt. 97-19.
Following the denial, Dr. Haynes submitted a 47-page document titled “Additional
Information Related to Research & Teaching” to explain why “the negative review was
Dr. Haynes cites to a prior memorandum drafted by the School Committee on October
8, 2013, but fails to provide any significance for mentioning it. Dr. Haynes claims that Dr.
Glazewski “fundamentally altered the [School Committee]’s report, changing the vast
majority of its positive statements to negative or neutral statements.” Dkt. 94 at 13. Dr.
Haynes also notes that the votes changed between the drafts of the report, noting that
the vote was “1 excellent to 8 very good for research but changed by the final draft to 3
excellent, 5 very good/highly satisfactory, and 1 satisfactory; and Haynes’s teaching …
was reversed from 6 votes for satisfactory and 3 votes for unsatisfactory to 3 votes for
satisfactory and 6 votes for unsatisfactory.” Dkt. 94 at 13. Dr. Haynes fails, however, to
demonstrate any import that these changes had on his case, since it would appear that
the reason for his tenure denial, his research, was given a greater assessment in the final
erroneous.” Dkt. 68-12 at 189-93. He also submitted a second 15-page document to
specifically address his teaching. Dkt. 68-12 at 200-01. Dr. Alexander advised Dr.
Haynes that the earlier reviewers would receive any supplemental information to his
dossier and would have the opportunity to change their vote. Dkt. 68-13, Ex. 13. The
Department and the School Committee members received the new information for
consideration, but none of them changed their votes as a result of the supplemental
materials. Dkt. 68-24 at 4.
H. UNIVERSITY REVIEW
Following Dean Gonzalez’s negative recommendation, the University-wide Tenure
Advisory Committee (“Tenure Committee”), headed by Vice Provost for Faculty and
Academic Affairs Thomas Gieryn, reviewed Dr. Haynes’ dossier. Dkt. 68-32. All nine
members of the Tenure Committee voted against granting Dr. Haynes tenure. Dkt. 6832 at 2. The Tenure Committee noted that Dr. Haynes’ case was “presented on the basis
of excellence in research,” but none of them found that Dr. Haynes’ research reached
that level (votes on research: 3 very good, 4 satisfactory, and 2 unsatisfactory). Dkt. 6832 at 2. Moreover, eight of the nine members on the committee found Dr. Haynes’
teaching to be ineffective. Dkt. 68-32 at 2.
Next, Gieryn himself reviewed Dr. Haynes’ dossier. Dkt. 68-12 at 19; Dkt. 98-33
at 2-3. Gieryn concentrated his evaluation on Dr. Haynes’ research. Dkt. 68-34 at 2.
Gieryn noted that “it is impossible to conclude that [Dr. Haynes’] research meets the
standard of Excellence. Pooling all votes and recommendations together, 18/26 people
evaluate the research as less than Excellent.” Dkt. 68-34 at 2. Geiryn noted, “Concerns
about the quantity of peer-reviewed publications, the stature of journals where they are
published and their demonstrated impact/influence are raised in the external letters and
continue at every level of review.” Dkt. 68-34 at 2. After reviewing Dr. Haynes’ dossier
and the reports from the external reviewers, Gieryn concluded, “I evaluate the candidates’
research to be Very Good, falling short of the Excellence needed for a positive tenure and
promotion decision.” Dkt. 68-34 at 3.
In a letter dated March 26, 2014, Gieryn wrote to Dr. Haynes to inform him that his
tenure was not recommended to the Board of Trustees and that his appointment would
end May 2015. Dkt. 68-35 at 2. Gieryn stated, “President McRobbie, Provost Robel and
I relied heavily on reviews prepared by faculty committees and also on the opinions of
administrators who evaluated your dossier.” Dkt. 68-35 at 2.
On May 27, 2014, Dr. Haynes submitted a 104-page grievance with an attached
43-page appendix to the Faculty Board of Review (“Review Board”). Dkt. 68-37 at 3. The
Review Board “decide[s] whether evidence supports the conclusion that procedural
irregularities had consequences for the legitimacy of the outcome, and if so, they may
make suggestions for remediation to the Provost.” Dkt. 68-20 at 2. Dr. Haynes did not
indicate anywhere in his grievance that his race played a role in the decision to deny him
tenure. Dkt. 68-13 at 2.
In an August 4, 2014, memorandum, the Review Board discussed each of Dr.
Haynes’ alleged grievances and concluded that none had merit. Dkt. 68-38. On August
19, 2014, Dr. Haynes submitted a response to the Review Board’s findings titled
“Corrections to Matters of Fact,” but the submission did not change the recommendation
of the Review Board. Dkt. 68-39; Dkt. 68-37 at 3.
On September 22, 2014, Dr. Haynes was notified that Provost Robel accepted the
Review Board’s decision and recommendation and therefore no further action would be
taken with respect to his grievance. Dkt. 68-37 at 3.
J. APPEAL TO UNIVERSITY’S PRESIDENT
On March 17, 2015, Dr. Haynes submitted an appeal to President Michael
McRobbie and for the first time alleged that his denial of tenure was a result of racial
discrimination. Dkt. 68-41. President McRobbie denied Dr. Haynes’ appeal and Dr.
Haynes’ appointment with the University ended in May 2015. Dkt. 68-13 at 6; Dkt. 68-35.
K. DRS. CHO AND LEFTWICH
Dr. Yonjoo Cho, who is not African American, had more publications than Dr.
Haynes and received a unanimous vote for tenure at all levels of review. 3
Dr. Anne Leftwich, who is not African American, had sixteen publications listed on
her dossier presented for tenure but only four were independent of her mentors at Indiana
or Purdue University. Dkt. 99-16 at 85-92. One of Dr. Leftwich’s external reviewers found
that “[g]iven that so few of her publications to date are singly authored, it is difficult to
determine whether Dr. Leftwich’s facility with collaborative research and writing with both
faculty and students overshadows her unique individual contributions to educational
Dr. Haynes claims that Dr. Cho was “less independent” than Dr. Haynes and cites to the
report discussing Dr. Cho’s tenure case, which states in part “that Dr. Cho had numerous
publications that were more focused on summarizing research of other scholars and
promoting ‘models’ that lacked much empirical foundation.” Dkt. 99-7 at 6. The report
concluded, however, that “the overall view of the faculty regarding Dr. Cho’s research
productivity and scholarship was highly positive and as the discussion concluded, the
faculty seemed to be in consensus that Dr. Cho’s work to date merited an excellent
rating.” Dkt. 99-7 at 6. Dr. Haynes also broadly claims that Dr. Cho received “negative
teaching evaluations” that were glossed over at all levels of review, but fails to provide
any analysis in this regard and therefore this unsupported allegation is disregarded.
technology research.” Dkt. 99-16 at 55. The same reviewer concluded, however, that
her “review of Dr. Leftwich’s work suggests that it is methodologically sound and welltriangulated, well-grounded in existing literature, clearly communicated, and useful to
other researchers in application of its findings.” Dkt. 99-16 at 55. Dr. Lefwich received a
unanimous vote for tenure at all levels of review. Dkt. 99-16 at 1.
M. CHARGE OF DISCRIMINATION AND LAWSUIT
On April 10, 2015, Dr. Haynes filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). Dkt. 1-1. He then filed this lawsuit on
October 29, 2015. Dkt. 1. The Complaint alleges race discrimination under Title VII, race
discrimination pursuant to 42 U.S.C. § 1981, and breach of implied covenant of good faith
and fair dealing. 4 Dkt. 1.
II. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural
shortcut, but rather is an integral part of the federal rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of every action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass’n of Black Landscapers
v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990). Motions for summary
judgment are governed by Federal Rule of Civil Procedure 56(a), which provides in
relevant part: The court shall grant summary judgment 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.
In his Statement of Claims, Dr. Haynes stated that he will not be pursuing his claim
related to a breach of the implied duty of good faith and fair dealing at trial. Dkt. 116 at
4. Therefore, the Court will only address Dr. Haynes’ discrimination claims.
Once a party has made a properly-supported motion for summary judgment, the
opposing party may not simply rest upon the pleadings but must instead submit
evidentiary materials showing that a fact either is or cannot be genuinely disputed.
Fed.R.Civ.P. 56(c)(1). A genuine issue of material fact exists whenever “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party
bears the burden of demonstrating that such a genuine issue of material fact
exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir.1996). It is not the duty
of the Court to scour the record in search of evidence to defeat a motion for summary
judgment; rather, the nonmoving party bears the responsibility of identifying applicable
evidence. See Bombard v. Ft. Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir.1996).
In evaluating a motion for summary judgment, the Court should draw all
reasonable inferences from undisputed facts in favor of the nonmoving party and should
view the disputed evidence in the light most favorable to the nonmoving party. See Estate
of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir.1996). The mere existence of a factual
dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that
might affect the outcome of the suit in light of the substantive law will preclude summary
judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94
F.3d 270, 273 (7th Cir.1996). Irrelevant or unnecessary facts do not deter summary
judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.1992).
If the moving party does not have the ultimate burden of proof on a claim, it is sufficient
for the moving party to direct the court to the lack of evidence as to an element of that
claim. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n. 3 (7th Cir.1994). “If the
nonmoving party fails to establish the existence of an element essential to his case, one
on which he would bear the burden of proof at trial, summary judgment must be granted
to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir.1996).
A. COLLATERAL MOTIONS
Prior to addressing the merits of Dr. Haynes’ discrimination claims, the Court must
first address four pending issues: (1) Defendants’ Motion to Strike (Dkt. 117); (2) Dr.
Haynes’ Surreply Motion (Dkt. 148); (3) Dr. Haynes’ Surreply in Opposition to Defendants’
Motion for Summary Judgment and Motion to Strike (“Surreply in Opposition”) (Dkt. 160);
and (4) Dr. Haynes’ Motion to Reconsider (Dkt. 165).
1. Motion to Strike
Pursuant to Federal Rule of Evidence 702, Defendants have moved to strike the
declaration of Dr. Laura W. Perna (Dkt. 102-14), which Dr. Haynes attached to his
response to Defendants’ motion for summary judgment. Defendants do not challenge Dr.
Perna’s credentials, but rather claim that her opinions are inadmissible.
In her declaration, Dr. Perna states that she “was engaged as an independent
expert to evaluate whether Dr. Haynes’s tenure process involved any procedural
irregularities and to compare his qualifications for tenure with that of [Dr. Leftwich].” Dkt.
102-14 at 3. Dr. Perna concluded in her declaration that “[Dr.] Haynes’ research record
is at least comparable to that of [Dr. Leftwich]. If [Dr. Leftwich]’s record demonstrated
‘excellence’ in research, then so does the record of [Dr.] Haynes.” Dkt. 102-14 at 4. Dr.
Perna also concluded “that various aspects of the promotion and tenure process were not
appropriately executed for [Dr.] Haynes. Particularly problematic is the selection of his
external reviewers.” Dkt. 102-14 at 4. 5
With respect to her conclusion that Dr. Haynes’ research was at least comparable
to Dr. Leftwich, Dr. Perna did a “comparative assessment of research excellence.” Dkt.
102-14 at 5. This assessment considered the quantity of material produced by both Dr.
Haynes and Dr. Leftwich and considered the number of: (1) peer-reviewed journals; (2)
independent lines of research; (3) research as books, book chapters, and conference
presentations; and (4) peer-reviewed journal articles. Dkt. 102-14 at 5-7. Dr. Perna also
noted that both Dr. Haynes and Dr. Leftwich received awards for papers and had research
entered into journals with high impact factors. Dkt. 102-14 at 6. Finally, Dr. Perna
summarized the amount of grants each procured and whether they did so independently
or as part of a collaboration. Dkt. 102-14 at 6-7.
Dr. Perna also reviewed various aspects of Dr. Haynes’ external review. She first
noted that the “Vice Provost’s Tenure and Promotion Recommendation raises questions
about ‘the probative value of the external letters[,]’” noting that it was not Dr. Haynes’
responsibility to secure qualified reviewers and Bichelmeyer stated in an email that she
“dropped the ball on external reviewers for Ray.” 6 Dkt. 102-14 at 7. Dr. Perna also
concluded that Dr. Brush “failed to encourage Haynes to select reviewers who are at
different institutions,” citing an email from Dr. Brush to Dr. Haynes recommending
In the attached exhibit to Dr. Perna’s declaration, which sets out more fully the evidence
considered in making her declaration, Dr. Perna succinctly reviewed Dr. Haynes’ teaching
performance. She does not, however, in either her declaration or the attached exhibit,
provide a conclusion for her analysis or tie it in to her declaration. See dkt. 102-14 at 89. Accordingly, it will not be considered in the Court’s analysis.
6 The actual email passage states that Bichelmeyer “dropped the ball on external
reviewers for Ray and Yonjoo.” Dkt. 100-13 at 1 (emphasis added).
professors that are part of strong programs and who have strong academic credentials
despite not being peer institutions.
Dkt. 102-14 at 7.
Dr. Perna then states that
“[a]vailable evidence raises questions about the qualifications of external reviewers that
Joyce Alexander selected as external reviewers” and cites to various emails from Dr.
Alexander to potential external reviewers who believed themselves either unqualified to
render an opinion on Dr. Haynes’ specialty or no longer active in the field. Dkt. 102-14 at
7-8. Dr. Perna also took issue with “why [Dr. Hardre] was selected” as an external
reviewer, noting one member of the faculty group’s opinion that Dr. Hardre tended toward
hyperbole and did not know much about Dr. Haynes’ area of specialization. Dkt. 102-14
at 8. Finally, Dr. Perna took issue with Dean Gonzalez’s characterization of Drs. Branch
and Nafukho’s external reviews as a “mixed assessment[,]” claiming that both of the
doctors provided a positive review of Dr. Haynes’ dossier. Dkt. 102-14 at 8.
Before proceeding to the merits, the Court must address two contentions raised by
Dr. Haynes. Dr. Haynes first claims that the Defendants’ Motion to Strike is procedurally
improper pursuant to Local Rule 56-1(i), which states, “The court disfavors collateral
motions – such as motions to strike – in the summary judgment process. Any dispute
over the admissibility or effect of evidence must be raised through an objection within a
party’s brief.” Although motions to strike are typically disfavored, Defendants adequately
raised their objection in their reply brief and filed their Motion to Strike on the same day.
See dkt. 120 at 3 n.3. Accordingly, the Court finds no error.
Dr. Haynes also claims that Defendants are required to show prejudice in filing a
motion to strike, citing Rule 12(f). Dkt. 139 at 4-5. Rule 12(f) states that “the court may
strike from a pleading any … redundant, immaterial, impertinent, or scandalous matter.”
Defendants’ Motion to Strike, however, is not predicated on any of these grounds; it seeks
to preclude inadmissible testimony from Dr. Haynes’ expert. Therefore, this argument is
Defendants claim that Dr. Perna’s opinions are both unreliable and irrelevant and
therefore fail to meet the admissibility standard for expert testimony. Dkt. 117 at 2. Rule
702 states as follows:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(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.
Under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the Court follows a two-prong framework: the Court must determine whether A(1)
the proposed witness would testify to valid scientific, technical, or other specialized
knowledge[,] and (2) [whether] his testimony will assist the trier of fact.@ Ammons v.
Aramark Unif. Servs., Inc., 368 F.3d 809, 816 (7th Cir. 2004) (quotations and citations
“Expert testimony which does not relate to any issue in the case is not
relevant[.]” Daubert, 509 U.S. at 591 (citations and quotation marks omitted).
The proponent of the expert testimony bears the burden of establishing the
admissibility of the expert opinion by a preponderance of the evidence. Daubert, 509
U.S. at 592. “The principles set forth in Daubert, which addressed scientific testimony,
apply equally to non-scientific fields.” Manpower, Inc. v. Ins. Co. of Penn., 732 F.3d 796,
805-06 (7th Cir. 2013) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49
(1999)). Regardless of the nature of the witness’ expertise, Rule 702: (1) establishes a
standard of evidentiary reliability; (2) requires a valid connection to the pertinent inquiry
as a precondition to admissibility; and (3) mandates that the testimony have a reliable
basis in the knowledge and experience of the relevant discipline. Id.
Defendants first claim that Dr. Perna’s comparison of Dr. Leftwich’s research
credentials is irrelevant to the material aspects of this case. Dr. Haynes responds that
“Dr. Perna’s testimony goes to the heart of the determination of whether Dr. Haynes was
treated differently than other similarly situated tenure candidates.” Dkt. 139 at 13. Dr.
Perna readily admits in her declaration that she is “not an expert in Dr. Haynes’ content
area,” which might explain why Dr. Perna only compares the quantity, rather than the
quality, of the research done by both Dr. Haynes and Dr. Leftwich. Dkt. 102-14 at 5. But
simply counting the amount of works by each candidate is not something that
necessitates an expert’s “specialized knowledge.” Fed. R. Evid. 702. Dr. Perna offers
no substantive analysis in her review of either candidate’s work and makes the
assumption that the two candidates were equally qualified based on the number of works
generated, despite Dr. Perna’s own acknowledgement that the University has
emphasized “[q]uality of production is considered more important than mere quantity.”
Dkt. 102-14 at 5-6. The Guidelines state: “Evaluations of research can never be reduced
to a simple metric: judgments about the quality of work, and its influence, impact, utility
and creativity cannot be fully captured by the count of publications and citations or by a
journal impact fact.”
Dkt. 97-12 at 6.
They further state, “Faculty members and
administrators must fully engage the candidate’s work, and reach their own judgments
about its worth.” Dt. 97-12 at 6. Pursuant to the Guidelines, simply counting the number
of work between the two candidates is not enough to provide an accurate analysis. Dr.
Perna’s report does nothing to evaluate the quality of works as between Dr. Haynes and
Dr. Leftwich and therefore is neither relevant nor “assist[s] the trier of fact” in making a
comparison of the candidates’ qualifications. Ammons, 368 F.3d at 816.
Dr. Perna’s opinion on the external reviewers suffers the same fate. 7 Dr. Perna’s
report states that “various aspects of the promotion and tenure process were not
appropriately executed for Haynes.
Particularly problematic is the selection of his
external reviewers.” Dkt. 102-14. To render this conclusion, Dr. Perna critiques various
emails and reports submitted with Dr. Haynes’ tenure, but fails to draw on any “specialized
knowledge” that would be useful to a trier of fact. Fed. R. Evid. 702. Dr. Perna’s opinions
offer nothing that a jury could not comprehend on its own. The purpose of expert
testimony is to help the jury with “issues that laypeople would have difficulty resolving on
their own.” Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir. 2013). Although
Dr. Perna has “participated in or consulted on approximately 100 tenure reviews at
multiple universities[,]” she uses none of this knowledge in reaching her conclusions and
contributes nothing new to the analysis. Dkt. 102-14 at 3. Laypeople are well-equipped
to evaluate this evidence to determine whether Dr. Haynes’ tenure process was done
properly. Dr. Perna’s testimony related to the external reviewers is irrelevant.
Accordingly, Defendants’ Motion to Strike is GRANTED.
2. Surreply Motion
Dr. Haynes filed his Surreply Motion seeking to reply to Defendants’ allegedly new
argument that “Dr. Perna as a witness should be excluded at summary judgment and
The Court notes that the Defendants sought to strike Dr. Perna’s opinion on the selection
of external reviewers as unreliable.
trial.” Dkt. 148 at 1-2. Dr. Haynes claims that the Defendants’ assertion that Dr. Perna
should be excluded as a witness at trial is a new argument to which they should be entitled
to respond. Because Dr. Haynes’ claims fail on the merits, see infra pt. III, B, his Surreply
Motion is DENIED as MOOT.
3. Surreply in Opposition
On July 31, 2017, the Court issued an order allowing Dr. Haynes to submit a
surreply to respond to: (1) new allegations in Defendants’ counsel’s affidavit; and (2)
Defendants’ argument on qualified immunity. Dkt. 157. The Court admonished Dr.
Haynes that “any evidence in the surreply must be limited to the affidavit and the qualified
immunity arguments and any extraneous evidence will be stricken completely.” Dkt. 157
at 8. The Court accepts the argument on Defendants’ claim that Dr. Haynes’ case is time
barred as well as the evidence designated by Dr. Haynes in support of his surreply as to
Defendants’ counsel’s affidavit, which consists of a declaration made by Dr. Haynes. Dkt.
With respect to the qualified immunity argument, Dr. Haynes once again takes the
opportunity to try and admit the full expert reports of Drs. Greenwald and Perna. See
dkts. 131, 132. “The doctrine of qualified immunity protects government officials from
liability for civil damages when their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Rabin v. Flynn,
725 F.3d 628, 632 (7th Cir. 2013) (citation and quotation marks omitted). “The doctrine
of qualified immunity shields from liability public officials who perform discretionary
duties.” Chelios v. Heavner, 520 F.3d 678, 690-91 (7th Cir. 2008) “The defense provides
‘ample room for mistaken judgments’ and protects all but the ‘plainly incompetent and
those who knowingly violate the law.’” Id. at 690 (quoting Hunter v. Bryant, 502 U.S. 224,
Dr. Haynes first offers the expert opinion of Dr. Perna, which concludes that “Dr.
Haynes’ record did not receive a fair and substantive evaluation on its academic merits.
Instead, the tenure and promotion process for Dr. Haynes was executed in a way that
seemingly pre-determined the result to deny tenure to Dr. Haynes.” Dkt. 161-2 at 22-23.
Dr. Haynes cites to Dr. Perna’s full expert report to claim that “[e]ach individual Defendant
was involved in sabotaging Dr. Haynes’s tenure application and thus violated the law.”
Dkt. 160 at 13. But nothing in Dr. Perna’s report sets forth any indication that any
individuals “knowingly violate[d] the law.” Chelios, 520 F.3d at 690. Dr. Perna’s full expert
report merely points out irregularities during Dr. Haynes’ tenure review that she deems
“improper” and “problematic.” Dkt. 160 at 13-14. These observations, in addition to being
irrelevant, see supra pt. III, A, 1, do not relate to whether or not any of the individual
Defendants knowingly violated Dr. Haynes’ constitutional rights and, pursuant to this
Court’s July 31, 2017, Order, are hereby stricken. Dkt. 161-2
Dr. Haynes also proffers Dr. Greenwald’s full expert testimony to establish that the
“individual Defendants’ denial of Haynes’s tenure application was, at minimum, plainly
incompetent because the individual Defendants’ implicit bias affected their tenure
decision against Haynes.” Dkt. 160 at 17. Dr. Haynes fails, however, to explain how any
implicit bias by the individual Defendants could render their actions “plainly incompetent.”
If anything, this type of bias would be protected under the qualified immunity doctrine,
which “gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly violate
the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation marks and
Thus, Dr. Greenwald’s expert report fails to address Defendants’
qualified immunity argument and, pursuant to this Court’s July 31, 2017, Order, is hereby
4. Motion to Reconsider
On August 11, 2017, Dr. Haynes filed his Motion to Reconsider pursuant to Rule
60. Dkt. 165. “Motions to reconsider serve a limited function, to be used ‘where the Court
has patently misunderstood a party, or has made a decision outside the adversarial
issues presented to the Court by the parties, or has made an error not of reasoning but
of apprehension.’” Davis v. Carmel Clay Sch., 286 F.R.D 411, 412 (S.D. Ind. 2012)
(quoting Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th
Cir. 1990)) (additional quotations omitted). The Court may grant a motion to reconsider
if a movant demonstrates a manifest error of law or fact, but a motion to reconsider is not
to be used to make new arguments. See In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).
Dr. Haynes makes the following requests in his Motion to Reconsider: (1)
reconsider the denial of Dr. Haynes’ request to supplement the record with expert
testimony; (2) permit the use of Dkt. 131-1, which the Court excluded for Dr. Haynes’
failure to cite it in his brief; (3) allow Dr. Haynes to respond to Defendants’ cat’s paw
theory; (4) consider evidence regarding the gender of one of the professors listed in an
affidavit; and (5) admit Dr. Haynes’ expert reports to respond to Defendants’ qualified
Dr. Haynes first blames the Court for his own failure to timely gather expert
testimony to respond to Defendants’ Motion for Summary Judgment. Dr. Haynes claims
that “the constricted briefing timeline set by the Court prevented Dr. Haynes from using
his expert reports in his response.” Dkt. 165 at 6. Yet, as the Court made clear in its July
31, 2017, Order denying his Motion to Supplement, Dr. Haynes failed to timely raise this
issue with the Court or request additional time to respond to Defendants’ Motion for
Summary Judgment, which resulted in the predicament he now faces. Dkt. 157 at 6-7.
Rather than take the “it’s easier to ask forgiveness than permission” approach, Dr.
Haynes should have informed the Court, and the Defendants, of the need for more time
to gather his expert testimony so that the issue could be addressed in a timely manner,
but he failed to do so. Accordingly, his request to reconsider the Court’s prior decision
on this issue is DENIED.
Dr. Haynes then claims that his Motion to Supplement “simply sought to add [Dkt.
131-1] that was missing from his Designation of Evidence.” Dkt. 157 at 9. Dr. Haynes
states that he “was not aware that he needed to provide a pinpoint cite in his Response
to the location of a citation to an exhibit in a prior brief that had been inadvertently omitted
from his Designation of Evidence.” Dkt. 165 at 9. Although it is not a requirement for a
party to provide such a pinpoint cite, it would behoove Dr. Haynes to point out what part
of the 15 pages of evidence contained in Dkt. 131-1 that is relevant to his discrimination
claim and also inform the Court where such evidence is cited in his 37-page response
brief. Nonetheless, the Court will accept this email chain as evidence on the merits of Dr.
Haynes’ claims. The Court reminds Dr. Haynes that it is not required to “hunt for truffles
buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
Dr. Haynes next cites the “cat’s paw” argument raised in his Motion for Surreply.
Dkt. 165 at 10-12. Dr. Haynes makes the same arguments in his Motion to Reconsider
that the Court rejected in its July 31, 2017 Order. Dr. Haynes has failed to present any
manifest error of law or fact and, therefore, this argument is rejected.
Dr. Haynes also claims that he “discovered that Defendants’ offered affidavit from
Jane Kaho was misleading.” Dkt. 165 at 12. Dr. Haynes notes that Kaho’s affidavit, which
relayed information on the number of African Americans at the School of Education, did
not indicate the gender of each faculty member. Dr. Haynes notes a discrepancy with
one of the individuals he believed to be a male, but who is actually a female. Dr. Haynes
also points out that one African American male on Kaho’s affidavit “belongs to the
Indianapolis campus, not the Bloomington campus.” Dkt. 165 at 13. Dr. Haynes tenders
this information to bolster his statement that “no tenured African American male is
employed at the Indiana University School of Education in Bloomington.” Dkt. 165 at 13.
The Court is unclear how this statement assists it to evaluate his race discrimination
claims, since there are no allegations of gender discrimination. Nonetheless, the Court
accepts this new information.
Finally, Dr. Haynes claims that the Court’s July 31, 2017, Order contained a factual
error; namely, the Court failed to recognize that the reports of Drs. Perna and Greenwald
were used to respond to Defendants’ qualified immunity defense. The Court has already
addressed this argument above. See pt. III, A, 3. Dr. Haynes’ submission of the full
expert reports of Drs. Perna and Greenwald does not comport with the Court’s July 31,
2017 Order and they will not be considered.
For the reasons set forth above, Dr. Haynes’ Motion to Reconsider is GRANTED
in part and DENIED in part.
B. EQUITABLE TOLLING
In Indiana, a plaintiff must file a charge of discrimination “within 300 days of the
occurrence of the act that is the basis of the complaint.” Doe v. R.R. Donnelley & Sons
Co., 42 F.3d 439, 445 (7th Cir. 1994). Failure to file within the 300 days renders the claim
“time-barred” and precludes recovery. Roney v. Ill. Dep’t of Transp., 474 F.3d 455, 460
(7th Cir. 2007). “The 300-day limit … begins to run when the defendant has taken the
action that injures the plaintiff and when the plaintiff knows [he] has been injured … not
when [he] determines that the injury was unlawful.” Sharp v. United Airlines, Inc., 236
F.3d 368, 372 (7th Cir. 2001) (quotation marks and citations omitted).
Dr. Haynes filed his charge of discrimination on April 10, 2015, approximately 380
days after he was notified of the University’s decision not to grant him tenure. Dkt. 1-1.
Dr. Haynes argues that his claim should survive under the theory of equitable tolling.
“Equitable tolling may only extend a deadline when ‘despite all due diligence, a plaintiff
cannot obtain the information necessary to realize that he may possibly have a claim.’”
Jones v. Res-Care, Inc., 613 F.3d 665, 670 (7th Cir. 2010) (quoting Beamon v. Marshall
& Ilsley Trust Co., 411 F.3d 854, 860 (7th Cir. 2005)). “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been
pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his
way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Even when equitable tolling is
applicable, “the court does not grant the plaintiff a fresh 300 days to file his charge once
he obtains enough information to suspect discrimination; he must file his charge with the
EEOC within a reasonable time.” Thelen v. Marc’s Big Boy Corp., 64F.3d 264, 268 (7th
Dr. Haynes claims that he was not reasonably aware of his discrimination claim
until March 2015, and therefore he only waited for a few weeks before submitting his
charge of discrimination with the EEOC. He asserts that the information he received in
March 2015 following a Freedom of Information Act request contained “key documents”
that provided evidence of discrimination based on Haynes’ race. Dkt. 94 at 18. He
specifically admits in his Complaint, however, that “on or around October 24, 2014, was
the first time that Dr. Haynes suspected or was aware of racial discrimination against
him.” Dkt. 1, ¶ 64. 8 “Judicial admissions are formal concessions in the pleadings, or
stipulations by the party or its counsel, that are binding upon the party making them.”
Keller v. United States, 58 F.3d 1194, 1198 n. 8 (7th Cir. 1995). Dr. Haynes’ own
Complaint explicitly acknowledges that he learned of the alleged discriminatory acts that
formed the basis of his Complaint in October 2014.
Dr. Haynes’ assertion that the “key documents” provided in March 2015 provided
him the information necessary to put the pieces together is baseless. Tellingly, the
evidence cited by Dr. Haynes does nothing to establish any discriminatory intent by the
Defendants. He cites: (1) an email from Brush to Boling and Bichelmeyer that suggested
he did not fit in with the IST Department; (2) additional emails where Boling and/or
Glazewski talked negatively about Haynes behind his back with Tom Brush; and (3) email
In his surreply, Dr. Haynes states that the reason that he stated that October 24, 2014,
was the first day he suspected racism is because that is when he received his first batch
of documents and that he wrote that date on the emails that date when he received them.
Dkt. 161-4, ¶¶ 5-6. Dr. Haynes could have stated in his Complaint that this is when he
first began to receive documents from the University relating to his FOIA request, which
the University concedes, but chose not to. In fact, October 24, 2014, was the first date
that the University produced documents relating to his claim. This explanation does
nothing to refute the explicit statement in his Complaint as to when he gained knowledge
of his alleged claims and is therefore disregarded.
exchanges between James Klein and Brush showing that Brush was improperly speaking
directly with his proposed external reviewer about what he thought Haynes’ external
review should say. Dkt. 94 at 18. 9 Dr. Haynes claims that only after receiving this
information in March 2015 did he “finally underst[and] that he had been discriminated
against on the basis of his race, African American.” Dkt. 94 at 18. Yet none of the
information cited by Dr. Haynes provides any indication of discriminatory animus during
his tenure process or provides the “extraordinary circumstance” that he finally overcame
to discover that he had been discriminated against. Pace, 544 U.S. at 418. Having failed
to meet this burden, Dr. Haynes’ equitable tolling argument must fail and his Complaint
is untimely as a matter of law.
C. DISCRIMINATION CLAIMS
Even if the Court could conclude that Dr. Haynes is entitled to equitable tolling and
find that his claims, which are brought under both Title VII and 42 U.S.C. § 1981, are not
time barred, they fail as a matter of law on the merits.
Courts “generally have applied the same prima facie requirements to
discrimination claims brought under Title VII and section 1981.” Humphries v. CBOCS
W., Inc., 474 F.3d 387, 403-04 (7th Cir. 2007) (citations omitted). Title VII prohibits
discrimination “against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race[.]” 42 U.S.C. § 2000e2(a)(1). To establish a claim under Title VII, a “plaintiff must prove that he engaged in
protected activity and suffered an adverse employment action, and that there is a causal
Dr. Haynes did not provide citations for the first two email exchanges.
link between the two.” Lord v. High Voltage Software, Inc., 839 F.3d 556, 563 (7th Cir.
As the Seventh Circuit recently instructed, a claim may survive summary judgment
if “the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race
… caused the discharge or other adverse employment action.” Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016). The Court need not separate direct and indirect
evidence into separate legal standards. Id. Ortiz, however, did not alter the burdenshifting framework set forth by McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). See David v. Bd. of Trs. of Cmty Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir.
Notably, with respect to tenure decisions, “although the legal standard is the same
whether the plaintiff in an employment discrimination case is a salesman or a scientist,
practical considerations make a challenge to the denial of tenure at the college or
university level an uphill fight.” Blasdel v. Northwestern Univ., 987 F.3d 813, 815 (7th Cir.
2012). This uphill fight is due to “the absence of fixed objective criteria for tenure at that
level.” Id. Even so, “faculty votes should not be permitted to camouflage discrimination,
even the unconscious discrimination of well-meaning and established scholars.”
Namenwirth v. Bd. of Regents of Univ. of Wisc. Sys., 769 F.2d 1235, 1243 (7th Cir. 1985).
However, “‘in the absence of clear discrimination,’ [courts] are generally ‘reluctant to
review the merits of tenure decisions,’ recognizing that ‘scholars are in the best position
to make the highly subjective judgments related to the review of scholarship and
university service.’” Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 667 (7th Cir.
2007) (citing Farrell v. Butler Univ., 421 F.3d 609, 616 (7th. Cir. 2005)).
Since Dr. Haynes has not introduced any direct evidence that the Defendants
discriminated against him because of his race, he presents his case under the indirect,
burden-shifting method under the McDonnell Douglas framework. To satisfy the first step
of this analysis, “the plaintiff must establish a prima facie case of discrimination.” Rhodes
v. Ill. Dep’t Transp., 359 F.3d 498, 504 (7th Cir. 2004), abrogated on other grounds by,
Ortiz, 834 F.3d 760. To do so, Dr. Haynes must demonstrate that he: (1) is a member of
a protected class; (2) was performing his job satisfactorily; (3) experienced an adverse
employment action; and (4) similarly situated individuals were treated more favorably. Id.
If the plaintiff satisfies this initial burden, the burden shifts to the employer to produce “a
legitimate, non-discriminatory reason for its employment action, and in response the
plaintiff must prove that the employer’s proffered non-discriminatory reason is a pretext
for discrimination.” Id. Defendants do not dispute that Dr. Haynes satisfies the first and
third prongs; therefore, the Court focuses its analysis on the second and fourth prongs.
1. Prima Facie Case
Dr. Haynes attempts to establish his prima facie case for race discrimination by
showing that he was qualified for tenure and that Dr. Leftwich was a similarly situated
non-African American who received tenure the year before Dr. Haynes.
evidence proffered by Dr. Haynes for this suggestion, however, is Dr. Perna’s declaration,
which concludes that “Haynes’ research record is at least comparable to that of
[Leftwich].” If [Leftwich]’s record demonstrated ‘excellence’ in research, then so does the
record of Haynes.” Dkt. 102-14 at 4. The Court has already determine that this evidence
is inadmissible. See supra pt. III, A, 1.
Even accepting that Dr. Perna’s assessment that Dr. Haynes’ dossier was
comparable to Dr. Leftwich’s, however, does not aid the Court in finding a discriminatory
purpose; “because tenure decisions typically involve numerous layers of review by
independent and University-wide committees, the causal connection between possible
discriminatory motive of a subordinate participant in the tenure process and the ultimate
tenure decision is weak or nonexistent.” Adelman-Reyes, 500 F.3d at 667 (quotation
marks and citation omitted). “Given the nuanced nature of [tenure] decisions, we generally
do not ‘second-guess the expert decisions of faculty committees.’” Sun v. Bd. of Trs. of
the Univ. of Ill., 473 F.3d 799, 815 (7th Cir. 2007) (quoting Vanasco v. Nat’l Louis Univ.,
137 F.3d 962, 968 (7th Cir. 1998). Eight other faculty members voted to grant Dr. Haynes
tenure based on his dossier; 19 voted against. The fact that Dr. Perna holds a different
opinion on Dr. Haynes’ research than 19 of Dr. Haynes’ colleagues does little to benefit
this case “in the absence of clear discrimination.” Farrell, 421 F.3d at 616. Dr. Perna’s
declaration provides no indication that the other 19 faculty members’ votes were made in
error, much less any indication that the votes were cast with discriminatory intent. And,
as explained more fully above, simply counting the number of publications is insufficient.
See supra pt. III, A, 1. Thus, Dr. Haynes has failed to establish that he was qualified for
tenure and his prima facie case must fail.
Even if Dr. Haynes could establish a prima facie case for discrimination, the
Defendants have articulated a non-discriminatory reason for denying him tenure that is
not pretextual. Multiple individuals and groups reviewed Dr. Haynes’ dossier and the
majority found that Dr. Haynes’ research did not rise to the University’s standard of
excellence. To establish “that an employer’s proffered reason is pretextual, a plaintiff
must do more than demonstrate that the employer made a mistake or that the employer’s
reason was not good enough to support its decision. … Instead, the plaintiff must
demonstrate that the employer’s reason is unworthy of belief.” Koski v. Standex Int’l
Corp., 307 F.3d 672, 677 (7th Cir. 2002) (citations omitted). “Specifically, the plaintiff
must show that the ‘nondiscriminatory’ reason is not the real reason at all, but is instead
nothing but a cover-up for discrimination.” Id. (citing Wolf v. Buss (Am.) Inc., 77 F.3d 914,
919 (7th Cir. 1996)). To demonstrate this, Dr. Haynes may show that: “(1) the proffered
reasons are factually baseless; (2) the proffered reasons were not the actual motivation
for the discharge; or (3) the proffered reasons were insufficient to motivate the discharge.”
Wolf, 77 F.3d at 914.
Dr. Haynes offers two arguments that this decision was pretextual: (1) Dr. Haynes
was held to a stricter standard than Drs. Cho and Leftwich; and (2) numerous irregularities
occurred during his tenure review process. 10 For the former contention, Dr. Haynes
merely concludes that, because Dr. Perna found Dr. Haynes’ research on par with Dr.
Leftwich, Dr. Haynes’ tenure review must have been held to a stricter standard. But even
Dr. Haynes also claims that racial discrimination may be inferred because “[i]n over 100
years, no other African American male has ever received tenure from IU’s School of
Education, suggesting a bias against African American males like Haynes. This shows a
disparate impact.” Dkt. 94 at 32. Dr. Haynes fails to develop his disparate impact theory
in any way; rather he merely cites to more alleged irregularities in his tenure review
process, which fails to establish how these irregularities are consequential to his
discrimination or disparate impact claims. See dkt. 94 at 32-34. Moreover, Dr. Haynes
fails to cite any authority for this line of reasoning. Accordingly, Dr. Haynes’ undeveloped
argument is waived. See United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991)
(“[P]erfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived.”).
accepting that Dr. Haynes was held to a stricter standard does not establish that the
reason for doing so was discriminatory.
Similarly, Dr. Haynes’ claim that “numerous irregularities occurred” during his
tenure process is not enough to demonstrate pretext. Dr. Haynes once again cites the
inadmissible opinion of Dr. Perna who concluded that “various aspects of the promotion
and tenure process were not appropriately executed for Haynes,” and “[p]artiularly
problematic is the selection of his external reviewers.” Dkt. 102-14 at 4. But even
accepting this conclusory allegation as true, Dr. Haynes has failed to demonstrate that
his tenure review suffered these irregularities because he was African American. Despite
Dr. Haynes setting forth a litany of alleged irregularities during his tenure review process,
see dkt. 94 at 26-31, he is unable to show how any of these irregularities serves as “a
cover-up for discrimination.” Koski, 307 F.3d at 677. Simply put, Dr. Haynes has failed
to set forth any evidence that “would permit a reasonable factfinder to conclude that [his]
race … caused the … adverse employment action.” Ortiz, 834 F.3d at 765.
Absent any evidence to the contrary, the University’s decision to deny Dr. Haynes’
tenure was not done with the intent to discriminate against him because of his race.
Accordingly, Dr. Haynes’ discrimination claims, which are brought under both Title VII and
42 U.S.C. § 1981, fail as a matter of law.
3. Qualified Immunity
Because the Court has concluded that Dr. Haynes has failed to evidence
discrimination in his tenure decision, the Court declines to address the qualified immunity
For the foregoing reasons, the Court GRANTS Defendants’ Motion to Strike. Dkt.
117. Dr. Haynes’ Surreply Motion is DENIED as MOOT. Further, the Court STRIKES
the full expert reports of Drs. Perna and Greenwald submitted with Dr. Haynes’ Surreply
in Opposition. Dkts. 161-2, 161-3. Dr. Haynes’ Motion to Reconsider is GRANTED in
part and DENIED in part. Dkt. 165. Finally, Defendants’ Motion for Summary Judgment
is GRANTED. Dkt. 66.
SO ORDERED this 18th day of August, 2017.
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
Sandra L. Blevins
BETZ & ASSOCIATES
Courtney E. Endwright
BETZ & BLEVINS
Kevin W. Betz
BETZ & BLEVINS
Melissa A. Gardner
TAFT STETTINIUS & HOLLISTER LLP
Michael C. Terrell
TAFT STETTINIUS & HOLLISTER LLP
Michele Lee Richey
TAFT STETTINIUS & HOLLISTER LLP
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