Hatcher v. Bd. of Trs. of S. Ill. Univ.

• Decision Date: 14 July 2016
• Docket Number: No. 15-1599,15-1599
• Citation: 829 F.3d 531
• Parties: Laura J. Hatcher, Plaintiff-Appellant, v. Board of Trustees of Southern Illinois University, and Kimberly Kempf–Leonard, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

829 F.3d 531

Laura J. Hatcher, Plaintiff-Appellant

v.Board of Trustees of Southern Illinois University, and Kimberly Kempf–Leonard, Defendants-Appellees.

No. 15-1599

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2015

Decided July 14, 2016

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 17, 2016

Shari R. Rhode, Cassie Renee Korando, Rhode & Jackson, Carbondale, IL, for Plaintiff-Appellant.

Ian P. Cooper, Tueth, Keeney, Cooper, Mohan & Jackstadt, St. Louis, MO, for Defendants-Appellees.

Before Rovner and Williams, Circuit Judges, and Shah, District Judge.^*

Williams

, Circuit Judge.

Dr. Laura Hatcher was denied tenure by Southern Illinois University (SIU), and claims that it was because she is a woman, assisted a student in reporting an incident of sexual harassment by an SIU faculty member, and filed a charge against SIU with the Equal Employment Opportunity Commission. SIU responds that it denied Dr. Hatcher tenure because she produced insufficient scholarship. We agree with the district court that Dr. Hatcher did not produce evidence from which a jury could conclude that SIU was lying about its reason for denying her tenure. We also agree that she was not engaging in speech protected under Title VII or by the First Amendment when she assisted the student with the sexual harassment report. But because her complaint stated a plausible claim of retaliation under Title VII for filing a charge with the EEOC, we reverse and remand the dismissal of that claim.

I. BACKGROUND

In July 2006, SIU hired Dr. Hatcher as a non-tenured assistant professor in the political science department of the College of Liberal Arts (COLA). Dr. Hatcher was up for tenure and promotion to associate professor in September 2011. SIU denied Dr. Hatcher tenure in March 2012, and shortly after terminated her contract.

Like at many universities, reviewing candidates for tenure at SIU involves a multi-level process. Candidates are evaluated first by an external review committee, second by the tenured faculty and chairperson of their respective departments, third by the COLA promotion and tenure committee consisting of 10 tenured faculty members across departments, fourth by the dean of the COLA, and finally by the provost and vice chancellor of SIU. At each step, the decision-makers consider the candidate's scholarship, teaching, and service.

About a year before she was up for tenure, Dr. Hatcher assisted a graduate student in the political science department in making a complaint to SIU about a faculty member who the student claimed was sexually harassing her. Dr. Hatcher testified that she believed she was required to help the student make the report based on Dr. Hatcher's job description.

Before submitting her tenure dossier, Dr. Hatcher received positive annual evaluations. The evaluations from her external reviewers, which were made a part of her dossier, all recommended her for tenure. In reviewing her tenure dossier, the political science department voted 4-2 in favor of promotion and tenure for Dr. Hatcher. In light of that vote, the department chair, Roger Clinton, recommended that Dr. Hatcher receive tenure and promotion. At the next step of the process, the COLA committee voted 5-4 in favor of tenure and 5-4 against promotion. The chair of the COLA committee wrote in his letter to the dean of the COLA, Kimberly Kempf-Leonard, that the COLA committee recognized Dr. Hatcher's success in teaching and service, but was concerned about her lack of academic publications in prestigious political science journals. So the COLA committee recommended that Dr. Hatcher receive tenure, but not promotion.

After receiving the COLA committee's recommendation, Dean Kempf-Leonard made her own independent review. In November 2011, Dean Kempf-Leonard sent a letter to the provost, John Nicklow, in which she wrote that while it was a difficult decision, Dr. Hatcher “has not demonstrated excellence in research” and recommended that Dr. Hatcher receive neither tenure nor promotion. Dean Kempf-Leonard found that “Dr. Hatcher has a lack of publications in both high-profile venues and a lack of publications in mainstream political science venues.” However, Dean Kempf-Leonard also noted that Dr. Hatcher's work was of high quality. After reviewing her tenure file, Provost Nicklow also noted Dr. Hatcher's lack of peer-reviewed publications, and recommended against awarding her both tenure and promotion.

During the same tenure cycle, two male professors in Dr. Hatcher's department, Roudy Hildreth and Stephen Bloom, were also considered for tenure and promotion. The political science department voted 6-0 in favor of promotion and tenure for Dr. Hildreth. Only 3 voted in favor of promotion and tenure for Dr. Bloom, 1 voted against tenure, and 2 members abstained. The COLA Committee voted 10-0 in favor of tenure and promotion for Dr. Bloom, and 10-0 in favor of tenure and 9-1 in favor of promotion for Dr. Hildreth. Dean Kempf-Leonard recommended tenure and promotion for both male candidates, and the provost and vice chancellor adopted those recommendations.

In April 2012, Dr. Hatcher filed a non-contractual grievance with the University's Judicial Review Board (JRB). The JRB is limited to procedural review of tenure decisions.

It found that Provost Nicklow did not sufficiently outline the reasons for denying tenure and promotion to Dr. Hatcher. As a remedy, it recommended that Dr. Hatcher be awarded promotion and tenure. In reviewing the grievance proceedings, Chancellor Rita Cheng agreed that the provost should have been more specific in his denial, but declined to reverse Dr. Hatcher's denial of tenure. Instead, she ordered Provost Nicklow to rewrite his denial letter in greater detail, which he did. Chancellor Cheng issued her final decision denying tenure to Dr. Hatcher on November 27, 2012.

In the meantime, on October 3, 2012, Dr. Hatcher filed a charge of discrimination with the Equal Employment Opportunity Commission, claiming that she was unfairly denied promotion because of her gender. After the denial became final, in April 2013, Dr. Hatcher filed a lawsuit against SIU, Chancellor Cheng, and Dean Kempf-Leonard, claiming discrimination and retaliation. The district court granted the defendants' motion to dismiss Dr. Hatcher's Title VII retaliation and First Amendment claims. Her remaining claim of gender discrimination was dismissed at summary judgment. Dr. Hatcher now appeals.

II. ANALYSIS

On appeal, Dr. Hatcher argues that the district court erred in granting the defendants' motion to dismiss her Title VII and 42 U.S.C. § 1983

retaliation claims, abused its discretion in denying her motion to reconsider its dismissal of those claims, and erred in granting summary judgment for her Title VII gender discrimination claim. We review the district court's dismissal of Dr. Hatcher's Title VII and § 1983 claims de novo . Connick v. Myers , 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). We review the denial of Dr. Hatcher's motion to reconsider under an abuse of discretion standard. Gonzalez

–

Koeneke v. West , 791 F.3d 801, 808 (7th Cir. 2015). We review the district court's grant of summary judgment de novo and construe all the evidence in the light most favorable to Dr. Hatcher. Gunville v. Walker , 583 F.3d 979, 985 (7th Cir. 2009).

A. Dismissal of Retaliation Claims

To survive a motion to dismiss, a claim must be plausible rather than merely conceivable or speculative. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

; Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must include enough details about the subject matter of a case to present a story that holds together, but the proper question to ask is “could these things have happened, not did they happen.” Carlson v. CSX Transp., Inc . 758 F.3d 819, 826–27 (7th Cir. 2014) (citing Swanson v. Citibank, N.A. , 614 F.3d 400, 404–05 (7th Cir. 2010) ).

1. Title VII Retaliation Claim for Filing EEOC Charge Was Sufficiently Pled

To state a claim for Title VII retaliation, a plaintiff must plead that she engaged in a statutorily protected activity and was subjected to materially adverse actions as a result of that activity. Burlington Northern & Santa Fe Ry. v. White , 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)

. Title VII specifically prohibits retaliation for filing a charge with the EEOC. 42 U.S.C. § 2000e-3(a).

Dr. Hatcher argues on appeal that the district court improperly dismissed her Title VII retaliation claims. She says her complaint makes out two plausible claims of retaliation: first, that she was denied tenure because she assisted a graduate student in making a report of sexual harassment, and second, that she was denied tenure because she filed a charge of employment discrimination against SIU with the EEOC. The defendants respond that assisting a graduate student in making a complaint of sexual harassment is not statutorily protected activity under Title VII. They further argue that because Dr. Hatcher filed her charge with the EEOC long after Dean Kempf-Leonard and Provost Nicklow made their recommendations to deny her tenure, Dr. Hatcher cannot establish causation between a protected activity and a materially adverse action by SIU. Finally, they claim that the district court was correct to dismiss the retaliation count because Dr. Hatcher failed to specifically plead that Chancellor Cheng's final tenure decision was retaliation for filing a charge at the EEOC.

While Dr. Hatcher's complaint mentions in a few places that she reported sexual harassment internally on behalf of a student and discussed shortcomings of the sexual harassment policy, there is no allegation in the complaint itself that the student was an employee of SIU. That omission is crucial for Title VII purposes. Under Title VII, an employee must identify an unlawful employment practice that is prohibited by that statu...