Packer v. Trs. of Ind. Univ. Sch. of Med.

• Decision Date: 28 August 2015
• Docket Number: No. 15–1095.,15–1095.
• Citation: 800 F.3d 843
• Parties: Dr. Subah PACKER, Ph.D., Plaintiff–Appellant, v. TRUSTEES OF INDIANA UNIVERSITY SCHOOL OF MEDICINE, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

800 F.3d 843

Dr. Subah PACKER, Ph.D., Plaintiff–Appellant

v.TRUSTEES OF INDIANA UNIVERSITY SCHOOL OF MEDICINE, et al., Defendants–Appellees.

No. 15–1095.

United States Court of Appeals, Seventh Circuit.

Argued June 4, 2015.

Decided Aug. 28, 2015.

Christopher Keleher, Attorney, Keleher Appellate Law Group, Chicago, IL, for Plaintiff–Appellant.

Amanda L. Shelby, Attorney, Ellen E. Boshkoff, Attorney, Donald Eugene Morgan, Attorney, Faegre Baker Daniels LLP, Indianapolis, IN, for Defendants–Appellees.

Before BAUER, ROVNER, and HAMILTON, Circuit Judges.

Opinion

ROVNER, Circuit Judge.

This case is yet another cautionary tale about the consequences of not properly responding to a motion for summary judgment. Dr. Subah Packer was discharged from a tenured position at the Indiana University School of Medicine based on what the University says was a persistent failure to meet expectations, particularly with respect to publication and securing grant money for her research. Packer contends that the official rationale for her discharge is a mere pretext for sex discrimination, and that the dean of the medical school had long sought her discharge after he was unsuccessful in preventing her from obtaining tenure. The problem, for Packer, is that when the defendants (the trustees of the medical school—whom we shall refer to collectively as the “University”) moved for summary judgment, her counsel below did not properly support the elements of her claims with specific citations to admissible record evidence. Her new counsel has attempted to rectify the omissions on appeal, but this is too late in the day. Given the patent defects in Packer's summary judgment memorandum below, we conclude that the district court properly entered judgment against Packer.

I.

Packer has a Ph.D. in physiology from the University of Manitoba in Winnipeg, Canada. In 1986, she began work as a post-doctoral fellow at the University's School of Medicine, and in 1988 was hired as assistant scientist and assistant professor (part-time) by the school's department of physiology and biophysics (the “physiology department”). She was appointed to the tenure-track position of assistant professor in 1994. When Packer sought tenure on the medical school faculty in 1999, the dean of the medical school, Craig Brater, opposed her appointment, and her application was denied, despite a favorable recommendation from the university's promotion and tenure committee. But Packer successfully grieved the denial, and in 2001 she was awarded tenure and promotion to the position of associate professor.

Faculty members in the physiology department are evaluated annually based on their performance in three areas: teaching, research, and service. A professor's rating in research is based both on her record of publication and on her success in obtaining external funding to support her research: she is expected to publish at least one research paper as first or senior author (or a major review) per year (as averaged over a period of three years); and with respect to funding she is, absent success in obtaining grant money, expected at a minimum to submit at least two grant applications per year that receive sufficiently high scores from reviewers. A faculty member's overall performance will be deemed satisfactory if she meets the minimum requirements in all three areas or if she is rated excellent in either teaching or research.

It is Packer's performance in the area of research that is a critical area of contention between the parties. The University represents that Packer, in the years leading up to her termination, repeatedly failed to meet expectations with respect to publication and external funding. Packer contends that her research performance is better than the University makes it out to be; she argues further that to the extent her scholarship and efforts to fund her research lagged behind that of her peers, it was in part because Dr. Michael Sturek, the chairman of the physiology department, attempted to sabotage her work by assigning her a series of increasingly insufficient and inappropriate lab spaces and interfering with her efforts to obtain grant money. She also alleges that there were other male faculty members in the department whose research performance also fell short of expectations but who suffered no adverse consequences.

Packer's over-arching theory is that when Sturek became chairman of the department in 2004, Brater, who had opposed Packer's appointment to the faculty from the start, instructed Sturek to find a way to get rid of her. Sturek accomplished that aim, she postulates, by undermining her research efforts in the ways we have mentioned and by assigning her consistently negative ratings in that area in order to build a record that would support her termination. He also repeatedly denied her salary increases and, at the conclusion of the 2012–13 academic year, reduced her salary by ten percent based on the negative ratings. Packer alleges that Brater and Sturek, and for that matter the University, treated her adversely in large part due to her gender.

Based on her allegedly inadequate performance as to research, Packer was given overall ratings of unsatisfactory in her evaluations for 2005–06, 2006–07, and 2007–08. A review and enhancement committee was convened late in 2008 based on Packer having received consecutive negative evaluations, but in view of what the committee deemed to be Packer's strong performance in both teaching and service, and her good faith (albeit unsuccessful) efforts to meet expectations with respect to research, the committee concluded that no discipline nor remedial plan for Packer was warranted. In 2008–09, although Packer was still deemed to be performing below expectations as to both the publication and funding components of research, she was rated excellent in teaching based on her receipt of the national (and prestigious) Guyton Physiology Educator of the Year award, and that rating of excellence in teaching resulted in an overall rating of satisfactory. But in the following three years (2009–10, 2010–11, and 2011–12), Packer's overall performance was again rated as unsatisfactory based on her below expectations achievements with respect to research.

In 2013, Sturek initiated dismissal proceedings against Packer. Because Packer was tenured, she could only be terminated on certain specified grounds, including, as relevant here, serious misconduct. Sturek asserted that Packer was guilty of such misconduct in that she had persistently neglected her duties and failed to complete the tasks reasonably expected of her. He cited her unsatisfactory ratings in six of nine annual reviews, her failure to comply with several aspects of a performance improvement plan that had been put into place in 2011, as well as the negative student evaluations she had received in a course she taught in the Fall of 2011. Sturek forwarded his recommendation to Dean Brater, who in turn submitted it to a three-person Conduct Characterization Committee. A majority of that committee concluded that Packer's record of unsatisfactory performance was appropriately characterized as serious misconduct warranting dismissal. The chancellor of the university informed Packer that he concurred in the recommendation of dismissal and that she would be terminated effective December 6, 2013.

Two years in advance of her discharge, and after exhausting her remedies with the Equal Employment Opportunity Commission (“EEOC”), Packer filed this suit against the University pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2 and e–3, and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). She alleged that the University had discriminated against her based on gender in her compensation and her working conditions and that it had unlawfully retaliated against her for having pursued internal complaints on those subjects. After she was terminated, she amended the complaint to include her discharge, which she cited as further evidence of both gender discrimination and retaliation, as well as a breach of contract.

The University moved for summary judgment, and based on a variety of omissions in the memorandum Packer submitted in opposition to that motion, the court concluded that summary judgment was warranted. Addressing Packer's claims one by one, the court determined that Packer either failed to support these claims with the requisite citations to specific evidence in the record demonstrating the existence of one or more genuine issues of material fact, ignored altogether key elements of certain claims, and otherwise failed to provide legal and evidentiary support for her claims. Packer v. Trustees of Indiana Univ. Sch. of Medicine, 73 F.Supp. 3d 1030 (S.D. Ind. 2014).

II.

Our review of the district court's decision to grant summary judgment is de novo. E.g., Castro v. DeVry Univ., Inc., 786 F.3d 559, 563 (7th Cir.2015). The district court has a single task when presented with such a motion, and that is to ascertain based on the record evidence whether there is a genuine dispute of material fact requiring a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994) ; see also D.Z. v. Buell, 796 F.3d 749, 755–56, 2015 WL 4652778, at *5 (7th Cir. Aug. 6, 2015) ; Egan v. Freedom Bank, 659 F.3d 639, 643 (7th Cir.2011) ; Kodish v. Oakbrook Terrace Fire Protection Dist., 604 F.3d 490, 507 (7th Cir.2010) ; Sun v. Bd. of Trustees of Univ. of Ill., 473 F.3d 799, 812 (7th Cir.2007). Consistent with that task, the obligation of the party opposing summary judgment is to demonstrate that there are one or more such factual disputes, see Waldridge, 24 F.3d at 920, by identifying admissible evidence that would permit the trier of fact to make a finding in the non-movant's favor as to any issue as to which it bears the burden of proof, see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) ; Roberts v. Broski, 186 F.3d 990, 995 (7th Cir.1999)....