Emily Lewis v. Indiana Wesleyan University ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2327
EMILY LEWIS,
Plaintiff-Appellant,
v.
INDIANA WESLEYAN UNIVERSITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:19-cv-00451-WCL-SLC — William C. Lee, Judge.
____________________
ARGUED FEBRUARY 9, 2022 — DECIDED JUNE 10, 2022
____________________
Before FLAUM, BRENNAN, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Dr. Emily Lewis, a 60-year-old Afri-
can American woman, alleges that Indiana Wesleyan Univer-
sity discriminated against her when it took away her supervi-
sory responsibilities and ultimately eliminated her position.
She brought various claims against the University under 42
U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the
Age Discrimination in Employment Act. The district court
granted summary judgment in favor of the University on her
2 No. 21-2327
retaliation claims and concluded that she had waived her age
discrimination claim. But the court’s summary judgment
opinion did not address Dr. Lewis’s race discrimination
claim. As explai—Žȱ‹Ž•˜ ǰȱ ŽȱŠĜ›–ȱ’—ȱ™Š›ǰȱvacate in part,
and remand for consideration of her race discrimination
claim.
I. Background
The following facts are undisputed unless otherwise
noted. Indiana Wesleyan University is a private Christian uni-
versity based in Marion, Indiana. Dr. Lewis began working
there in 2017 as Director of Instructional Design. In that role,
she supervised a team of five instructional designers, who as-
sisted with curriculum development across the University.
Dr. Lewis initially reported to Lorne Oke, the Executive Di-
rector of the Center for Learning and Innovation. Not long af-
ter starting her job, Dr. Lewis informed Oke that she believed
her subordinates (all of whom were white) did not take direc-
tion from her on account of her race.
In July 2018, Dr. Lewis met with Oke and Diane McDaniel,
the University’s Diversity Officer, to discuss her concerns.
During the meeting, Oke told Dr. Lewis that she should get
“Black woman syndrome off of [her] shoulders” and that she
was “too smart.” On August 6, 2018, Oke informed Dr. Lewis
that he intended to remove her from her supervisory position
and sent her home for the day. According to Oke, he merely
wanted Dr. Lewis to take some time away from her subordi-
nates until a new position could be created. Dr. Lewis, on the
other hand, believed she was being fired because of her race.
She immediately contacted McDaniel and Matt Lucas, the
University’s Chancellor.
No. 21-2327 3
On August 8, 2018, Lucas, McDaniel, and human re-
sources personnel met with Oke and Dr. Lewis to discuss the
situation. Dr. Lewis claims she was not told that her position
was being changed; instead, she was allowed to work from
home on intermittent assignments for two months. In any
event, Oke created a new title for Dr. Lewis: Director of Sup-
port for Research and Learning. This new role offered the
same pay and benefits as her prior role but did not involve
any supervisory or leadership responsibilities.
Meanwhile, the University planned to merge the Center
for Learning and Innovation with another department. Erin
Crisp was selected to lead the combined entity as the Associ-
ate Vice President for Innovation. In preparation for this tran-
sition, Crisp spoke with Oke about his experience supervising
Dr. Lewis. In February 2019, Crisp emailed Chancellor Lucas
explaining that she had decided to eliminate Dr. Lewis’s po-
sition. Crisp wrote that she believed research was an essential
part of her own role, that she did not feel comfortable dele-
gating those responsibilities to Dr. Lewis, and that an em-
ployee who is “unable to lead or be led will continue to un-
dermine [our] culture.” In the same email, Crisp noted that a
research assistant “would be very valuable, but that isn’t what
this position entails.” There is no evidence in the record that
Crisp knew of Dr. Lewis’s August 2018 discrimination com-
plaint when she decided to eliminate Dr. Lewis’s position.
Crisp began supervising Dr. Lewis in April 2019. In June
2019, Crisp informed Dr. Lewis that her position was being
eliminated. Crisp gave her the option of accepting a research
assistant position the following month or being terminated in
August 2019. Dr. Lewis declined the research assistant posi-
tion and ceased working at the University. Crisp did not hire
4 No. 21-2327
anyone else for the research assistant position, and some of
Dr. Lewis’s responsibilities were absorbed by members of
Crisp’s team.
Dr. Lewis brought various employment discrimination
claims against the University, only three of which are relevant
to this appeal. First, Dr. Lewis alleges that her August 2018
“demotion” from Director of Instructional Design to Director
of Support for Research and Learning was retaliatory (the “re-
taliatory demotion claim”). Second, she alleges that her 2019
termination was in retaliation for her complaint of discrimi-
nation in 2018 (the “retaliatory termination claim”). Third, Dr.
Lewis alleges that her termination was discriminatory on the
basis of her race and age.
The district court granted summary judgment in favor of
the University on Dr. Lewis’s retaliatory demotion and retal-
iatory termination claims. The court also concluded that Dr.
Lewis had waived her age discrimination claim by failing to
raise it after the University moved for summary judgment.
But the district court did not address Dr. Lewis’s race discrim-
ination claim as to her 2019 termination. Dr. Lewis timely ap-
pealed.
II. Discussion
We review the district court’s grant of summary judgment
de novo. Chatman v. Bd. of Educ. of City of Chi., 5 F.4th 738, 744
(7th Cir. 2021). Summary judgment is appropriate when
“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). We construe all facts and draw all reasonable
inferences in the nonmoving party’s favor, but the moving
party may prevail “by showing an absence of evidence to
No. 21-2327 5
support” the nonmoving party’s claims. Tyburski v. City of
Chicago, 964 F.3d 590, 597 (7th Cir. 2020).
Title VII prohibits employers from discriminating against
their employees on the basis of race, color, religion, sex, or na-
tional origin. 42 U.S.C. § 2000e-2(a). The Age Discrimination
in Employment Act (“ADEA”) further prohibits discrimina-
tion against workers aged 40 years or older. 29 U.S.C.
§ 623(a)(1). To succeed on a Title VII discrimination claim, an
employee must prove (1) that she is a member of a protected
class, (2) that she suffered an adverse employment action, and
(3) causation. Abrego v. Wilkie, 907 F.3d 1004, 1012 (7th Cir.
2018). The legal analysis for discrimination claims under Title
VII and § 1981 is largely identical. McCurry v. Kenco Logistics
Servs., LLC, 942 F.3d 783, 788 (7th Cir. 2019). Race discrimina-
tion claims under Title VII simply require that race be a “mo-
tivating factor in the defendant’s challenged employment de-
cision.” Comcast Corp. v. Nat’l Ass'n of Afr. Am.-Owned Media,
140 S. Ct. 1009, 1017 (2020). For a § 1981 claim, however, “a
plaintiff bears the burden of showing that race was a but-for
cause of [her] injury.” Id. at 1014. Similarly, age discrimination
claims require a private-sector employee to prove that age
was the but-for cause of the adverse employment action. Ty-
burski, 964 F.3d at 598. 1
One way of proving employment discrimination is the fa-
miliar McDonnell Douglas burden-shifting framework.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
1Cf. Babb v. Wilkie, 140 S. Ct. 1168, 1173–74, 1175–76 (2020) (distin-
guishing between the ADEA’s private-sector and public-sector provisions
and holding that age need not be the but-for cause of a federal employee’s
personnel action).
6 No. 21-2327
To establish a prima facie case of employment discrimination,
the employee must show that “(1) she is a member of a pro-
tected class, (2) she was meeting the defendant’s legitimate
expectations, (3) she suffered an adverse employment action,
and (4) similarly situated employees who were not members
of her protected class were treated more favorably.” Tyburski,
964 F.3d at 598. When an employee’s position is eliminated as
part of a mini-reduction in force (“mini-RIF”), the fourth ele-
ment of the prima facie case becomes whether the employee’s
duties were absorbed by workers outside her protected class.
Petts v. Rockledge Furniture LLC, 534 F.3d 715, 725 (7th Cir.
2008) (Title VII); Filar v. Bd. of Educ. of City of Chi., 526 F.3d
1054, 1060 (7th Cir. 2008) (ADEA). If an employee meets each
element of her prima facie case, the burden shifts to the em-
ployer to articulate a legitimate, nondiscriminatory reason for
the adverse employment action. The burden then shifts back
to the employee to show why the employer’s explanation is
pretextual. Tyburski, 964 F.3d at 598.
At summary judgment, courts ask whether the evidence
“would permit a reasonable factfinder to conclude that the
plaintiff’s race, ethnicity, sex, religion, or other proscribed fac-
tor caused the discharge or other adverse employment ac-
tion.” Abrego, 907 F.3d at 1012 (quoting Ortiz v. Werner Enters.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016)); see also Tyburski, 964
F.3d at 598 (applying the same test in the ADEA context). We
have emphasized that “courts must assess the evidence ‘as a
whole, rather than asking whether any particular piece of ev-
idence proves the case by itself,’ regardless of whether the
court also analyzes the evidence pursuant to McDonnell Doug-
las.” Tyburski, 964 F.3d at 598 (quoting Ortiz, 834 F.3d at 765).
No. 21-2327 7
A. Discriminatory Termination
Dr. Lewis argues that her discriminatory termination
claims—on the basis of race and age—should have survived
summary judgment under McDonnell Douglas. She further
contends that her age discrimination was not waived below.
Two of the four elements of her prima facie case are
straightforward: she is a member of a protected class (a Black
woman over the age of 40), and her termination constitutes an
adverse employment action. We assume for the sake of argu-
ment that Dr. Lewis was meeting the University’s legitimate
expectations, notwithstanding mixed evidence in the record
as to her performance. The parties primarily disagree as to the
fourth element: (a) whether similarly situated employees
were treated more favorably, or (b) under a mini-RIF theory,
whether her duties were absorbed by employees not in her
protected class.
1. Race Discrimination
Our Circuit Rule 50 provides in relevant part:
Whenever a district court resolves any claim or coun-
terclaim on the merits, … the judge shall give his or her
reasons, either orally on the record or by written state-
ment. The court urges the parties to bring to this
court’s attention as soon as possible any failure to com-
ply with this rule.
Nonetheless, the district court failed to explain why it was
granting summary judgment on Dr. Lewis’s claim that her
termination was racially discriminatory. As a result, we can-
not be sure that the district court adequately considered the
merits of that claim.
8 No. 21-2327
The University argues that remand would be futile, and
we can affirm for any basis supported by the record. O'Brien
v. Caterpillar Inc., 900 F.3d 923, 928 (7th Cir. 2018). But given
the fact-specific nature of Dr. Lewis’s race discrimination
claim, we decline to assess it in the first instance. Accordingly,
we vacate summary judgment as to that claim and remand it
to the district court.
2. Age Discrimination
We agree with the district court that Dr. Lewis waived her
age discrimination claim by failing to adequately develop it
in her opposition to summary judgment. See Rozumalski v.
W.F. Baird & Assocs., Ltd., 937 F.3d 919, 925 (7th Cir. 2019)
(“We apply waiver even if the issue may have been before the
district court in more general terms, still holding a party to its
responsibility to make a specific argument.”) (internal quota-
tion marks omitted); Puffer v. Allstate Ins. Co., 675 F.3d 709, 718
(7th Cir. 2012) (“[A]rguments that have been raised may still
be waived on appeal if they are underdeveloped, conclusory,
or unsupported by law.”).
In her briefing below, Dr. Lewis made passing reference to
the legal standard for age discrimination claims by citing the
McDonnell Douglas framework. Yet she neglected to mention
(much less grapple with) the ADEA’s requirement that age
was the but-for cause of her termination. Tyburski, 964 F.3d at
598. Her evidence of Oke’s “discriminatory animus” sounds
exclusively in race discrimination, not age discrimination.
Setting aside whether Oke’s discriminatory animus can or
should be imputed to Crisp as the final decisionmaker, Dr.
Lewis failed to point to evidence before the district court sug-
gesting her age drove the decision to eliminate her position.
Without more, her age discrimination claim is waived.
No. 21-2327 9
B. Retaliation
Title VII and the ADEA prohibit employers from retaliat-
ing against their employees because an employee complained
of discrimination. 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d).
To survive summary judgment on a retaliation claim, a plain-
tiff must come forward with sufficient evidence for a reason-
able jury to conclude that (1) she engaged in protected activ-
ity, (2) she suffered an adverse employment action, and
(3) causation. Rozumalski, 937 F.3d at 924 (Title VII); Boston v.
U.S. Steel Corp., 816 F.3d 455, 464 (7th Cir. 2016) (ADEA).
To show causation, employees may point to circumstan-
tial evidence, such as “suspicious timing, ambiguous state-
ments of animus, evidence other employees were treated dif-
ferently, or evidence the employer’s proffered reason for the
adverse action was pretextual.” Rozumalski, 937 F.3d at 924
(internal quotation marks omitted). Plaintiffs may also make
use of the McDonnell Douglas framework in the retaliation
context. See, e.g., McDaniel v. Progress Rail Loco., Inc., 940 F.3d
360, 370 (7th Cir. 2019). Ultimately, “[t]he key question is
whether a reasonable juror could conclude that there was a
causal link between the protected activity or status and the
adverse action.” Rozumalski, 937 F.3d at 924 (citing Ortiz, 834
F.3d at 765–66).
1. Retaliatory Demotion
The district court concluded that Dr. Lewis’s retaliatory
demotion claim was time-barred under Title VII and the
ADEA, but because § 1981 has a longer statute of limitations,
the court considered the claim on the merits. 2 Nevertheless,
2Compare Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 269 (7th Cir.
2004) (concluding that four-year statute of limitations applied to a
10 No. 21-2327
we agree with the district court that this claim cannot survive
summary judgment. Even when viewed in the light most fa-
vorable to Dr. Lewis, the facts simply do not support a causal
connection between her protected activity and an adverse em-
ployment action. To recap, on August 6, 2018, Oke informed
Dr. Lewis that he intended to remove her from her supervi-
sory position. Dr. Lewis then contacted the University’s
Chancellor and Director of Diversity, explaining that she be-
lieved Oke’s decision was racially motivated. After a meeting
on August 8, Oke created a new director-level position for Dr.
Lewis.
Because Dr. Lewis’s protected activity (reporting a claim
of race discrimination) did not occur until after the August 6
conversation with Oke, her protected activity could not have
caused Oke to demote her. The University adds that her new
role provided the same pay and benefits, so it could not have
constituted a demotion. See, e.g., Place v. Abbott Labs., 215 F.3d
803, 810 (7th Cir. 2000) (concluding that an employee’s trans-
fer to another position with the same title, pay, and benefits
was not an adverse action). Dr. Lewis counters that she lost
her supervisory and leadership responsibilities. We need not
decide whether her new role amounted to a demotion, how-
ever, because Oke had decided to remove her supervisory re-
sponsibilities before she engaged in protected activity.
2. Retaliatory Termination
Likewise, Dr. Lewis’s retaliatory termination claim cannot
survive summary judgment. The undisputed evidence shows
retaliation claim under § 1981 because it was premised on conduct that
took place after the formation of an employment contract), with 42 U.S.C.
§ 2000e-5(e)(1) (Title VII); 29 U.S.C. § 626(d)(1) (ADEA).
No. 21-2327 11
that when Crisp decided to eliminate Dr. Lewis’s position in
February 2019, Crisp was unaware that Dr. Lewis had com-
plained of discrimination. It follows that Crisp could not have
acted with retaliatory animus. Tyburski, 964 F.3d at 603 (“For
a superior to have retaliated against an employee based on
protected activity, the superior must have had knowledge of
that protected activity.”). Because Dr. Lewis has failed to
make out a prima facie case of retaliation, we do not reach her
argument that the University’s stated reasons for terminating
her were pretextual.
On appeal, Dr. Lewis makes a belated attempt to invoke a
cat’s paw theory of liability. See McDaniel, 940 F.3d at 370 (“In
employment discrimination cases, the ‘cat’s paw’ is the un-
witting manager or supervisor who is persuaded to act based
on another’s illegal bias.”). Dr. Lewis suggests that Oke’s re-
taliatory animus should be imputed to Crisp, even though
there is no evidence that Crisp knew of her protected activity.
Unfortunately, she failed to develop this theory below, so she
has waived it. Rozumalski, 937 F.3d at 925.
III. Conclusion
The district court correctly granted summary judgment in
favor of the University on Dr. Lewis’s retaliation claims, and
Dr. Lewis waived her age discrimination claim by failing to
preserve it below. But because the district court did not ex-
plain why it was granting summary judgment on Dr. Lewis’s
race discrimination claim, we decline to evaluate that claim in
the first instance. The district court’s judgment is AFFIRMED in
part, VACATED in part, and REMANDED for further proceedings
consistent with this opinion.