Cheikh Seye v. Trustees of Indiana University

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 7, 2020 *
Decided December 8, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20–1969
CHEIKH I. SEYE, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:17-cv-04384-JPH-MJD
THE TRUSTEES OF James Patrick Hanlon,
INDIANA UNIVERSITY, Judge.
Defendant-Appellee.
ORDER
Indiana University denied Cheikh Seye tenure after considering, then
reconsidering, his candidacy. Seye, who was injured in two car accidents during the
review process, sued for retaliation under the Rehabilitation Act, and the district court
granted the university’s motion for summary judgment. Because Seye did not introduce
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20–1969 Page 2
sufficient evidence based on which a reasonable jury could find that, but for retaliation,
he would have been granted tenure, we affirm.
Seye’s journey through the university’s tenure review process took a winding
path. He was hired in 2009 as a tenure-track assistant professor in the medical school’s
Department of Cellular & Integrative Physiology and scheduled for tenure review in
2014. After a car accident in 2012, he was permitted to apply in 2015 instead. At the first
stages of review, the department committee and the chair of the department,
Dr. Michael Sturek, recommended against tenure. Seye was permitted to withdraw his
dossier and reapply in 2016. In October 2015, the university received a notice of tort
claim (a precursor to suit under the Indiana Tort Claims Act) against Sturek for
allegedly disclosing confidential medical information in his recommendation to deny
tenure. (He wrote that Seye suffered headaches and cognitive decline after his accident.)
In 2016, Seye reapplied for tenure, but he had a second car accident and took
several months of medical leave. Review proceeded, and although Sturek
recommended approving tenure this time, the relevant committees at the department,
medical school, and university-wide levels all voted against tenure, as did Dean Jay
Hess of the School of Medicine and Executive Vice-Chancellor Kathy Johnson. Then
Nasser Paydar, the chancellor of Indiana University–Purdue University Indianapolis
and the final decisionmaker in Seye’s case, reviewed his dossier and denied tenure.
In May 2017, Seye grieved this decision to the Faculty Board of Review because
not all committees had considered an addendum to his dossier with his most recent
publications, and because of Sturek’s disclosures. The Board recommended reopening
his candidacy based only on the missing addendum, and, in his discretion, Paydar
ordered a complete re-review. Seye also filed charges of disability discrimination and
retaliation against the University with the Equal Employment Opportunity Commission
in May and July 2017. After the agency issued right-to-sue notices in November, Seye
filed the present suit under the Rehabilitation Act, 29 U.S.C. § 794, alleging that his
tenure application was denied because of disability discrimination and retaliation.
In the meantime, the tenure reconsideration process had begun. This time, Sturek
and the department, medical school, and campus-wide committees voted for tenure (by
divided votes). Dean Hess again recommended against tenure—a decision Seye says he
prematurely conveyed to Chancellor Paydar along with information about the
committee votes. Executive Vice-Chancellor Johnson now recommended in favor of
Seye. Finally, in April 2018, Paydar decided against tenure, citing Seye’s low research
No. 20–1969 Page 3
productivity, lack of involvement in graduate student mentorship, and mixed external
reviews. This was the only instance in which the vice-chancellor could remember the
chancellor voting differently from her on a candidate for tenure.
Seye amended his complaint to challenge the final denial of tenure. He
eventually dropped his claim of discrimination, and the University moved for summary
judgment on his retaliation claim. The district court granted the University's motion,
finding no evidence of a causal connection between any protected activity (whether the
EEOC charges, the notice of tort claim, the internal grievance, or the complaint in this
case) and the denial of tenure.
Seye appeals, arguing that he submitted sufficient evidence that he was denied
tenure because of his notice of tort claim or other protected activity, not the reasons
Paydar provided. See McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 370–71
(7th Cir. 2019). We review the district court’s decision de novo, construing all facts and
reasonable inferences in Seye’s favor. Guzman v. Brown Cnty., 884 F.3d 633, 638 (7th Cir.
2018). For his retaliation claim to withstand summary judgment, Seye needs to show
that the evidence as a whole would permit a reasonable factfinder to conclude that a
“proscribed factor” caused the denial of tenure. Lewis v. Wilkie, 909 F.3d 858, 866–67
(7th Cir. 2018) (citing Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764–65 (7th Cir. 2016)).
He must further show that retaliation for his protected activity was the “but-for” cause
of his denial of tenure, not merely a “motivating factor.” Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 362 (2013).
Seye urges us to treat his 2015 tort claim notice against Dr. Sturek as protected
activity under the Rehabilitation Act because it referred to the disclosure of medical
information. The district court did not decide the question, but because timing is at
issue, we conclude that the October 2015 notice was not protected activity. In it, Seye
alleged numerous private harms (such as reputational damage) under Indiana’s Tort
Claims Act, Ind. Code § 34-13-3-8, but not disability discrimination or anything similar.
See Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 674 (7th Cir. 2011)
(complaining about action plaintiff believes in good faith is discriminatory constitutes
protected conduct). And the claim did not pertain to Hess or Paydar, whose actions are
at issue in this suit. But, in any event, Seye’s EEOC charges and this lawsuit are actions
upon which he may base a retaliation claim. Scheidler v. Indiana, 914 F.3d 535, 540, 544
(7th Cir. 2019); see also Smith v. Lafayette Bank & Trust Co., 674 F.3d 655, 658 (7th Cir.
2012).
No. 20–1969 Page 4
Seye next argues that the district court erred in treating Chancellor Paydar as the
only relevant decisionmaker because Dean Hess “interfered with [his] tenure process”
by having off-the-record conversations with Paydar. But Seye lacks evidence of these
purported discussions; his accusation that Hess did more than make a recommendation,
as policy requires, is speculative. Even if Hess secretly “harbored a retaliatory motive,”
he was a “subordinate participant in the tenure process,” which involved “numerous
layers of review.” Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 667 (7th Cir. 2007).
“Invidious considerations” on Hess’s part would provide only “weak or non-existent”
evidence of retaliation by Paydar. Blasdel v. Northwestern Univ., 687 F.3d 813, 817
(7th Cir. 2012); Adelman-Reyes, 500 F.3d at 667. Even so, Seye provides no evidence that
Hess made his second negative assessment because of the EEOC charges or this lawsuit.
See Redd v. Nolan, 663 F.3d 287, 295 (7th Cir. 2011).
Seye argues further that the timing of the denial suggests retaliation because
Paydar was aware of the EEOC complaints and this lawsuit by February 2018 and
denied tenure for the final time in April 2018. But Seye does not demonstrate anything
suspicious about this timing. Rather than retaliating at the first opportunity, as Seye
alleges, Paydar re-started the entire tenure review process—including soliciting new
external reviews—after Seye’s EEOC charges. Only at the end of that process, seven
months later, was Seye again denied tenure. That Seye filed suit before the re-review
ended is insufficient to show that it was the but-for cause of Paydar’s decision. Silk v.
Bd. of Trs., Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d 698, 710 (7th Cir. 2015).
Finally, Seye argues that Paydar betrayed a retaliatory motive by giving
pretextual reasons for his decision. According to Seye, Paydar’s reasons “deviate
considerably” from the University’s tenure guidelines and “conflict with documents in
the record.” This effectively asks us to re-evaluate the substance of his application and
dossier. Tenure decisions, however, “necessarily rely on subjective judgments about
academic potential,” and involve assessments of promise as well as qualification.
Vanasco v. National-Louis Univ., 137 F.3d 962, 968 (7th Cir. 1998); see also Sun v. Bd. of Trs.
of the Univ. of Ill., 473 F.3d 799, 815 (7th Cir. 2007). Here, university policy tasked Paydar
with independent review of all subordinate tenure recommendations, and he gave Seye
“simple, direct reason[s]” for his decision in terms of those policies. Novak v. Bd. of Trs.
of S. Ill. Univ., 777 F.3d 966, 976 (7th Cir. 2015). We will not reassess whether Seye was,
as he says, really a productive researcher or whether he mentored enough students. His
critiques of the process do not show that Paydar’s decision was “anything other than an
honest professional evaluation of his potential.” Id. at 977; see also Collins v. Am. Red
No. 20–1969 Page 5
Cross, 715 F.3d 994, 1000 (7th Cir. 2013) (“[A] plaintiff must show that her employer is
lying, not merely that her employer is wrong.”).
AFFIRMED