SEYE v. THE BOARD OF TRUSTEES OF INDIANA UNIVERSITY
Filing
60
ORDER granting Defendant's 44 Motion for Summary Judgment. Final judgment will issue in a separate entry. (See Order). Signed by Judge James Patrick Hanlon on 5/8/2020. (MAC)
Case 1:17-cv-04384-JPH-MJD Document 60 Filed 05/08/20 Page 1 of 14 PageID #: 823
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DR. CHEIKH SEYE,
)
)
Plaintiff,
)
)
v.
)
)
THE BOARD OF TRUSTEES OF INDIANA )
UNIVERSITY
)
a/k/a INDIANA UNIVERSITY)
PURDUE UNIVERSITY INDIANAPOLIS,
)
)
Defendant.
)
No. 1:17-cv-04384-JPH-MJD
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
After a long evaluation process, Dr. Cheikh Seye was denied tenure as a
faculty member at the Indiana University School of Medicine. Understandably
disappointed, Dr. Seye alleges that unlawful retaliation was the real reason he
was denied tenure. IU seeks summary judgment. Dkt. [44]. Because Dr. Seye
has designated no evidence allowing a reasonable jury to find that he was
denied tenure in retaliation for engaging in protected activities, that motion is
GRANTED.
I.
Facts and Background
Because IU has moved for summary judgment under Rule 56(a), the
Court views and recites the evidence "in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party's favor."
Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).
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A. IU School of Medicine's Tenure-Review Process
At IU, the tenure track generally runs six years; after completing five
years the professor submits a dossier, which is evaluated in the sixth year.
Dkt. 45-2 at 2; dkt. 45-1 at 5 (Seye Dep. at 20). Candidates are evaluated on
their research, teaching, and service. Dkt. 45-4 at 37. One requirement for
tenure is that a candidate be rated "excellent" in at least one of those areas. Id.
at 30, 37.
In the School of Medicine, the tenure-review process involves a host of
committee and individual evaluations and recommendations over several
phases. The dossier review begins with the department's Promotion and
Tenure Committee, which issues a recommendation that is reviewed by the
department chair. Dkt. 45-5 at 5 (Hess Dep. at 31–32). Next the School of
Medicine's Promotion and Tenure Committee reviews the dossier, and that
committee's recommendation goes to School of Medicine's dean. Id. (Hess Dep.
at 32–33). Then the campus-wide Promotion and Tenure Committee makes a
recommendation. Id. (Hess Dep. at 32–33). The dossier then goes to the ViceChancellor for consideration and a recommendation. Dkt. 45-7 at 5 (Paydar
Dep. at 12). Finally, the Chancellor consults with the President of the
University and decides whether tenure will be awarded. Id.
B. Dr. Seye's Tenure Dossier
IU appointed Dr. Seye in February 2009 as a tenure-track assistant
professor in the School of Medicine's Department of Cellular & Integrative
Physiology. Dkt. 45-2 at 2. Dr. Seye chose research as his area of required
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excellence. Dkt. 45-1 at 6 (Seye Dep. at 21). He was originally on track to
submit his tenure dossier in 2014. See dkt. 45-1. But after suffering
significant injuries in a car accident in 2012, he requested a one-year
extension. See dkt. 45-9. IU granted that request, dkt. 45-11, and Dr. Seye
submitted his dossier in 2015, dkt. 45-1 at 14 (Seye Dep. at 56).
1. Review of Dr. Seye's 2015 Dossier
The department Promotion and Tenure Committee and the department
chair, Dr. Michael Sturek, both recommended that Dr. Seye not receive tenure.
Dkt. 45-1 at 16 (Seye Dep. at 61); dkt. 45-12. That led Dr. Seye to request
another one-year extension to submit a new dossier, dkt. 45-14, which IU
granted in July 2015, dkt. 45-16.
In October 2015, Dr. Seye sent IU a notice of tort claim alleging that Dr.
Sturek discussed confidential medical information and included inaccurate
information in a letter explaining his negative tenure recommendation. Dkt.
45-17.
2. Review of Dr. Seye's 2016 Dossier
Dr. Seye submitted his new dossier in 2016. Dkt. 45-1 at 24 (Seye Dep.
at 96). While the department Promotion and Tenure Committee once again
voted against tenure, id., this time Dr. Sturek recommended tenure, dkt. 4523. The School of Medicine's Promotion and Tenure Committee then voted
against tenure, dkt. 45-1 at 29 (Seye Dep. at 120), and Dean of the School of
Medicine Jay Hess upheld that decision, dkt. 45-25.
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In December 2016, Dr. Seye supplemented his dossier with newly
accepted publications and doctors' letters about his medical condition. Id. at
34 (Seye Dep. at 138–40). He was also involved in another car accident later
that month and required medical leave to recover. Id. at 33 (Seye Dep. at 133–
34).
In early 2017, the campus Promotion and Tenure Committee reviewed
Dr. Seye's dossier and voted against tenure—but the supplemental materials
that Dr. Seye submitted in December 2016 were not considered. Dkt. 45-28;
dkt. 45-33 at 12. Executive Vice Chancellor Kathy Johnson reviewed the
dossier next, and also recommended against tenure. Dkt. 45-29. Finally,
Chancellor Nassar Paydar reviewed the dossier and decided that Dr. Seye
would not receive tenure and that his appointment with IU would end in June
2018. Dkt. 45-31.
Dr. Seye filed a grievance with the Faculty Board of Review, which
recommended that Dr. Seye's dossier be reviewed again with the additional
information that he had submitted in December 2016. Dkt. 45-33 at 22–24.
Chancellor Paydar accepted that recommendation. Dkt. 45-34.
3. Review of Dr. Seye's Final Supplemented Dossier
The department Promotion and Tenure Committee then reviewed Dr.
Seye's dossier again, this time voting three to two in favor of tenure. Dkt. 4535. Dr. Sturek again supported tenure. Dkt. 45-1 at 45 (Seye Dep. at 187).
And the School of Medicine's Promotion and Tenure Committee voted eleven to
one in favor of tenure. Dkt. 46-36. The school's dean, Dr. Hess, again
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recommended against tenure, concluding that Dr. Seye's research productivity
and scientific reputation did not warrant tenure. Dkt. 45-37. The campus
Promotion and Tenure Committee then voted seventeen to two in favor of
tenure, dkt. 45-38, and Executive Vice Chancellor Johnson recommended
tenure, dkt. 45-39.
Chancellor Paydar conducted the final review, deciding in April 2018 that
Dr. Seye would not receive tenure. Dkt. 45-41. About two weeks later, at Dr.
Seye's request, he explained his decision:
[S]ome factors that went into our judgment of your
dossier included concerns over the quantity and quality
of your publications, your research (grants and
sponsored programs) productivity, low level of
involvement in graduate student mentorship, and to
some exten[t] your mixed external reviews. There is,
however, no mechanical formula for the award of
tenure—it is ultimately a judgment call.
Dkt. 45-40 at 2.
In November 2017, while the final supplemented dossier was under
review, Dr. Seye filed this lawsuit alleging disability discrimination and
retaliation in violation of the Rehabilitation Act. Dkt. 1. Chancellor Paydar
learned of the lawsuit six weeks before he issued his final decision. Dkt. 45-27
at 5–6. Dr. Seye amended his complaint after Chancellor Paydar's decision,
dkt. 25, and later dismissed his disability-discrimination claim, dkt. 42. IU
has moved for summary judgment on the retaliation claim. Dkt. 44.
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II.
Applicable Law
Summary judgment shall be granted "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." Fed. R. Civ. P. 56(a). The moving party must
inform the court "of the basis for its motion" and specify evidence
demonstrating "the absence of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this
burden, the nonmoving party must "go beyond the pleadings" and identify
"specific facts showing that there is a genuine issue for trial." Id. at 324.
In ruling on a motion for summary judgment, the Court views the
evidence "in the light most favorable to the non-moving party and draw[s] all
reasonable inferences in that party's favor." Zerante, 555 F.3d at 584 (citation
omitted).
III.
Analysis
For the retaliation claim to survive summary judgment, Dr. Seye must
show "(1) statutorily protected activity; (2) adverse employment action; and (3)
causal connection." Scheidler v. Indiana, 914 F.3d 535, 544 (7th Cir. 2019). 1
IU argues that none of Dr. Seye's protected activities 2 were causally connected
Retaliation claims under the Rehabilitation Act and Americans with Disabilities Act
share the same elements, so the Court cites cases under these laws interchangeably.
See Stanek v. St. Charles Comm. Unit Sch. Dist., 783 F.3d 634, 641, 643–44 (7th Cir.
2015).
1
Dr. Seye argues that he engaged in three protected activities—filing a tort claim
notice, filing a faculty board of review grievance, and filing this lawsuit. Dkt. 50 at 13.
2
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to his tenure denial. Dkt. 46 at 19–27. Dr. Seye responds that a jury could
find a causal connection because of the timing of the tenure denial, a failure to
follow tenure process standards, and contradictory explanations for the tenure
denial. Dkt. 50 at 15.
Rehabilitation Act retaliation claims require "but for" causation—mere
"proof of mixed motives will not suffice." Serwatka v. Rockwell Automation, Inc.,
591 F.3d 957, 962 (7th Cir. 2010). Under this standard, the issue is whether
the tenure decisionmakers would have granted tenure but for their retaliatory
conduct. See Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 816 (7th Cir.
2007).
A. Chancellor Paydar is the only relevant decisionmaker.
IU argues that Chancellor Paydar was the sole decisionmaker. Dkt. 46 at
21. Dr. Seye contends that both Chancellor Paydar and Dean Hess were
decisionmakers. Dkt. 50 at 13. After Dean Hess recommended against tenure
in the final round of review, both the campus tenure committee and Executive
Vice Chancellor Johnson reviewed Dr. Seye's dossier and recommended tenure.
Dkt. 45-37; dkt. 45-38; dkt. 45-39. Only then did Chancellor Paydar decide
that Dr. Seye would not receive tenure. Dkt. 45-41. This case therefore
involves the "numerous layers of independent review" that are typical in tenure
decisions. See Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 667 (7th
IU argues that filing the tort claim notice was not protected activity, and even if it
were, the tenure decisionmaker was not aware of it. Dkt. 46 at 19–21. The Court
does not address these arguments because IU is entitled to summary judgment on the
causal connection element.
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Cir. 2007). Because of that layered review, possible discrimination from a
"subordinate participant in the tenure process"—such as Dean Hess—can
provide only "weak or nonexistent" evidence of a causal connection. Id.
For example, in Adelman-Reyes, the Seventh Circuit found that a dean's
negative tenure recommendation could not support a causal connection despite
evidence that the dean's recommendation "weighed heavily" in a subsequent
review. Id. at 664, 667. Here, Dr. Seye has not designated evidence suggesting
that Dean Hess had even that much influence on any of the three layers of
review that came after his recommendation. See dkt. 50 at 15–20. Dean
Hess's recommendation against tenure thus cannot support a causal
connection, see Adelman-Reyes, 500 F.3d at 667, making Chancellor Paydar
the only relevant decisionmaker. 3
B. Dr. Seye has not designated evidence of retaliation.
Chancellor Paydar reviewed Dr. Seye's dossier and decided not to grant
tenure. Dkt. 45-7 at 5, 9–11 (Paydar Dep. at 13, 29, 33–34). Dr. Seye has no
direct evidence that Chancellor Paydar's decision was retaliatory. Dkt. 50 at
15; dkt. 45-1 at 38 (Seye Dep. at 154–56). He instead argues that a jury could
infer retaliation based on circumstantial evidence, including a failure to follow
tenure standards, contradictory explanations for the tenure denial, and the
denial's timing. Dkt. 50 at 15.
Chancellor Paydar made his decision in consultation with the President of the
University, but Dr. Seye has not argued or designated evidence that the President
retaliated against him. See dkt. 53 at 7, 7 n.1.
3
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1. Any deviations from the tenure process do not support an
inference of retaliation.
Dr. Seye alleges that Chancellor Paydar (1) downplayed his National
Institutes of Health grant and was unjustifiably concerned that it would not be
renewed, (2) did not account for recent publications, (3) improperly considered
a lack of mentoring PhD candidates as relevant to excellence in research, (4)
misconstrued letters from external reviewers as negative, (5) denied tenure
despite Vice-Chancellor Johnson's positive recommendation, and (6) discussed
Dr. Seye's application with Dean Hess and Vice-Chancellor Johnson. Dkt. 50
at 17–19. He argues that from these "multiple, inexplicable deviations," a jury
could infer retaliatory conduct. Id. at 20.
But even if those alleged deviations and inconsistencies are supported by
evidence and taken as true, they cannot create a triable issue of fact. Bad,
contradictory, or inconsistent reasons for a tenure denial are not enough to
make that denial illegal. Redd v. Nolan, 663 F.3d 287, 295 (7th Cir. 2011); see
also Robinson v. Alter Barge Line, Inc., 513 F.3d 668, 674 (7th Cir. 2008)
("Many [retaliation] suits are based on misunderstandings (the plaintiff can't
believe there was a good reason for his having been sacked, so he imputes a
bad one to the employer) . . . ."). What's required to survive summary
judgment is "evidence from which a reasonable jury might conclude" that Dr.
Seye would have received tenure but for his protected activity. Redd, 663 F.3d
at 295. That is missing here because Dr. Seye has no evidence pointing
directly to retaliation and the issues he identifies do not allow an inference of
retaliation. See dkt. 50 at 15, 20; Novak v. Bd. of Trs. of S. Ill. Univ., 777 F.3d
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966, 975 (7th Cir. 2015) (upholding summary judgment because the evidence
did not show disability discrimination but—at most—"lapses in . . . assessment
methodology that might have resulted in unfairness").
The unique nature of tenure decisions further shows that Dr. Seye's
alleged process deviations cannot raise an inference of retaliation. Tenure
systems defy "fixed, objective criteria" because decisions "necessarily rely on
subjective judgments about academic potential." Blasdel v. Northwestern Univ.,
687 F.3d 813, 815 (7th Cir. 2012) (quoting Vanasco v. National–Louis Univ.,
137 F.3d 962, 968 (7th Cir. 1998)). Moreover, the Court "must not ignore the
interest of colleges and universities in institutional autonomy." Id. at 816.
Tenure is nuanced, and requires "something more than mere qualification; the
department must believe the candidate has a certain amount of promise." Sun,
473 F.3d at 815. So while universities may not illegally discriminate or
retaliate in the name of institutional autonomy, "courts must understand the
nature and mission of the institution and evaluate the evidence accordingly."
Novak, 777 F.3d at 976.
These concepts are particularly important in this case. Dr. Seye's focus
at IU was research, and the parties contest whether his research was up to
snuff. Dkt. 45-1 at 6 (Seye Dep. at 21); dkt. 46 at 26; dkt. 50 at 18. But
research quality and quantity are hard for courts to judge, and the stakes are
high:
If A publishes an excellent academic paper every five
years on average, is she better or worse than B, who
publishes a good but not excellent paper on average
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every six months, so that at the end of five years he has
published 10 papers and she only 1? Quantity and
quality are (within limits) substitutes . . . . Or suppose
Professor C used to publish a paper every six months,
but she has slowed down, while D, who is younger, has
not. That is an ominous sign from the standpoint of
granting C tenure, because a tenured professor is very
hard to fire even if he or she has ceased to be a
productive scholar. With mandatory retirement now
unlawful, the grant of tenure is often literally a lifetime
commitment by the employing institution, barring
dementia or serious misconduct.
Blasdel, 687 F.3d at 816. In the end, Dr. Seye has designated no evidence of
deviations or inconsistencies from which a jury could infer retaliation,
especially considering the subjective and academic nature of tenure decisions.
2. Timing does not support an inference of retaliation.
Dr. Seye also argues that a reasonable jury could infer retaliation based
on the timing of the tenure denial. Dkt. 50 at 15. But Chancellor Paydar
learned of this lawsuit six weeks before denying tenure, and Dr. Seye has not
designated evidence that Chancellor Paydar learned of other protected activity
closer than that. Dkt. 45-27 at 5–6. That timing, by itself, cannot show
causation. See Povey v. City of Jeffersonville, 697 F.3d 619, 624 (7th Cir. 2012)
(finding that termination three weeks after a complaint could not, by itself,
support causation) (citing Turner v. The Saloon, Ltd., 595 F.3d 679, 690 (7th
Cir. 2010)).
Dr. Seye nevertheless argues that this timing can show retaliation
because Chancellor Paydar took an adverse employment action at his first
opportunity to retaliate. Dkt. 50 at 16 (citing McGuire v. City of Springfield, Ill.,
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280 F.3d 794, 796 (7th Cir. 2002)). But that's not so—as Dr. Seye later
admits, Chancellor Paydar could have denied Dr. Seye's request for a re-review
of his dossier with his late-coming publications. Id. Dr. Seye argues that
Chancellor Paydar may have allowed the re-review out of deference to the
faculty board's recommendation, id. at 16–17, but even if that speculation is
true, Chancellor Paydar did not take action against Dr. Seye at his first chance,
so the timing here does not support retaliation.
C. No designated evidence shows that Dr. Seye's tenure denial was
pretextual.
Finally, no designated evidence shows that IU's reasons for denying
tenure were pretextual. Dr. Seye has not identified other professors who were
similarly situated but treated better. See Anderson v. Donahoe, 699 F.3d 989,
996 (7th Cir. 2012). And the reasons Chancellor Paydar gave for the tenure
denial—including concerns over the quantity and quality of publications,
research grant productivity, and mixed external reviews—had been identified
as concerns long before any of Dr. Seye's protected activities. That undermines
a causal connection between those activities and the tenure denial. See Arroyo
v. Volvo Grp. N. Am., LLC, 805 F.3d 278, 287 (7th Cir. 2015) (finding
insufficient causation evidence when the protected activity came after
discipline began). While some of those concerns had been mitigated by a
recent uptick in publications, that short-term boost is not enough to show
pretext given the "lifetime commitment" of tenure. Blasdel, 687 F.3d at 816.
And except for that spike in publications, Dr. Seye offers no evidence
contradicting or undermining the "legitimate, non-discriminatory reasons"
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given for the tenure denial. Silk v. Bd. of Trs., Moraine Valley Comm. Coll., 795
F.3d 698, 710 (7th Cir. 2015).
In short, there is no designated evidence from which a reasonable jury
could find that Dr. Seye would have been granted tenure but for retaliation.
There is therefore no triable issue of fact and IU is entitled to summary
judgment.
IV.
Conclusion
IU's motion for summary judgment is GRANTED. Dkt. [44]. Final
judgment will issue in a separate entry.
SO ORDERED.
Date: 5/8/2020
Distribution:
Samuel Mark Adams
JOHN H. HASKIN & ASSOCIATES, LLC
sadams@jhaskinlaw.com
James R. A. Dawson
TAFT STETTINIUS & HOLLISTER LLP (Indianapolis)
jdawson@taftlaw.com
John H. Haskin
JOHN H. HASKIN & ASSOCIATES, LLC
jhaskin@jhaskinlaw.com
Melissa A. Macchia
TAFT STETTINIUS & HOLLISTER LLP (Indianapolis)
mmacchia@taftlaw.com
13
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Michael C. Terrell
TAFT STETTINIUS & HOLLISTER LLP (Indianapolis)
mterrell@taftlaw.com
Bradley L. Wilson
JOHN H. HASKIN & ASSOCIATES, LLC
bwilson@jhaskinlaw.com
14
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