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BREWER v. BOARD OF TRUSTEES

December 22, 2005.

LONNELL BREWER, Plaintiff,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, KERRIN THOMPSON, in her individual capacity, L. DENISE HENDRICKS, in her individual capacity, WALLACE HENDRICKS, in his individual capacity, PETER FEUILLE, in his individual capacity, Defendants.



The opinion of the court was delivered by: DAVID BERNTHAL, Magistrate Judge

ORDER

In September 2002, Plaintiff, Lonnell Brewer, filed a Complaint (#1) against Defendants Board of Trustees of the University of Illinois, Kerrin Thompson, L. Denise Hendricks, Wallace Hendricks, and Peter Feuille, alleging discrimination in employment and violation of his constitutional and statutory rights in connection with his education. Federal jurisdiction is based on federal question (28 U.S.C. § 1331). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge.

In July 2005, Defendant Board of Trustees (hereinafter "Board") filed a Motion for Summary Judgment (#24). After reviewing the parties' pleadings and memoranda, this Court GRANTS Defendant's Motion for Summary Judgment (#24).

  I. Background

  A. Plaintiff's Allegations

  Plaintiff alleges that he is an African-American with a learning disability. At relevant times, Kerrin Thompson was special assistant to the director of the University of Illinois Personnel Services Office (hereinafter "PSO"); Denise Hendricks was assistant vice-president of human resources, associate vice-chancellor for administrative affairs, and director of the PSO; Peter Feuille was a professor and the director of the Institute of Labor and Industrial Relations (hereinafter "ILIR") at the University of Illinois; and Wallace Hendricks was a professor in the ILIR and Denise Hendricks' husband.

  In August 1997, Plaintiff enrolled in the master's degree program at the ILIR. Beginning August 28, 1997, he worked for the University of Illinois as a research assistant assigned to the PSO.*fn1 His assistantship was terminated in April 1998. On June 18, 1998, he was dismissed from the master's degree program. (#1, ¶ 24.)

  B. Procedural Background

  Plaintiff's complaint consists of five counts, as follows: (1) Count I, against all Defendants, alleges race discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.); (2) Count II alleges that the Board of Trustees, Thompson, and Denise Hendricks violated the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (hereinafter "ADA"); (3) Count III alleges that Thompson, Denise Hendricks, Wallace Hendricks, and Feuille violated Plaintiff's constitutional and statutory rights; (4) Count IV, against all Defendants, alleges a violation of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d, et seq.); and (5) Count V, against all Defendants, alleges retaliation.

  In its May 2003 Order (#14), the Court dismissed Plaintiff's ADA claim in Count II, the constitutional claim in Count III, and the claims against Kerrin Thompson, Denise Hendricks, Wallace Hendricks, and Peter Feuille in their individual capacities in Counts I, IV, and V. Thus, the Board is the only Defendant in this case. The claims remaining in this case include the following: (1) In Count I, Plaintiff alleges that Defendant Board violated Title VII because Plaintiff was subject to continuous and ongoing acts of race discrimination from supervisors, managers, and faculty; (2) in Count IV, Plaintiff alleges that Defendant violated Title VI because it denied Plaintiff the benefits of participation in the ILIR master's degree program based on his race; and (3) in Count V, Plaintiff alleges that he was subject to adverse actions in retaliation for his complaints to Ron Bacevich, a Labor Relations Specialist in the PSO, and Denise Hendricks regarding discrimination that preceded or occurred in connection with the termination of his employment at the PSO.

  C. Affidavit of Ronald Bacevich

  As an initial matter, Plaintiff's claim of retaliation in Count V is based on the premise that he complained of racial discrimination to Denise Hendricks and Ronald Bacevich. The Court notes that Plaintiff has stated that he is not offering Mr. Bacevich's statements in Paragraphs 9 to 12 of the affidavit as proof of the matter asserted. Consistent with this response, the Court must limit its consideration of those statements. As a result, Plaintiff cannot rely on Bacevich's statements in those paragraphs to support his proposed material facts or to challenge Defendant's proposed material facts.

  II. Standard of Review

  Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary judgment, the Court must decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). The party seeking summary judgment bears the initial burden of showing that no such issue of material fact exists. Celotex, 477 U.S. at 323.

  The Court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, he must go beyond the pleadings and support his contentions with proper documentary evidence. Celotex, 477 U.S. at 322-23. Pursuant to Rule 56(b), when a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that a genuine issue exists as to any material fact and that the moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A scintilla of evidence in support of the nonmovant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson, 477 U.S. at 250. The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. "In such a situation there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id.

  III. Factual Background

  The parties disagree about many of the facts in this case. At times, the evidence provided by the parties clears up the dispute; at other times, the dispute is of the "dueling affidavits" variety. Where facts are contested, the Court must accept the factual assertions of the nonmoving party when ruling on a motion for summary judgment. Pardo v. Hosier, 946 F.2d 1278, 1280 (7th Cir. 1991). Thus, the following recitation is based on the evidence and, where a dispute exists that the evidence does not resolve, the Court accepts Plaintiff's version of the disputed facts.

  A. Plaintiff's Participation in the ILIR Program

  Plaintiff, an African-American, enrolled in the ILIR master's degree program in August 1997. At that time, the program required a student to complete ten units, with each unit being one class. Most students complete the program in a year and a half, taking four units during the first semester and three units during the second and third semesters. Plaintiff wanted to complete the program in one calendar year. As a result, he inquired about the possibility of taking five units in the fall semester. Although this is an unusual arrangement, Plaintiff persuaded Professor Michael LeRoy, his academic advisor, to approve a five-unit course load. (LeRoy dep., pp. 97, 16.) In addition to his class load, Plaintiff worked approximately ten hours at an assistantship, worked at the University's rehabilitation center as its primary speaker, and was interviewing for jobs.

  By the end of the fall semester, Plaintiff was falling behind in his course work. Professor Wallace Hendricks taught one of Plaintiff's courses during the fall semester. He testified that Plaintiff failed to show up for some lab sessions, which negatively affected Plaintiff's grade. (Hendricks dep., pp. 94, 32.) In other courses, Plaintiff asked Professor Martocchio for an extension to turn in a paper in December 1997, and he asked Professor LeRoy for extensions to complete final exams in two classes. (Brewer dep., pp. 51-53; Martocchio dep., p. 17; LeRoy dep., pp. 17, 19.) Although LeRoy granted the extensions, he informed Plaintiff that he would impose a penalty. (LeRoy dep., pp. 17, 19.) Plaintiff eventually completed the paper and turned in the finals by the extended due dates.

  At the end of the fall semester, Plaintiff's grade point average (hereinafter "GPA") was 2.866. As a result, in keeping with ILIR policy, Plaintiff was considered to be on limited status. In January 1998, Professor LeRoy, in his capacity as chairman of the On-Campus Committee (hereinafter "Committee"), sent Plaintiff a letter stating, in pertinent part, as follows:
The On-Campus Committee has reviewed Fall 1997 semester grades. After completing five units, your grade point average is 2.866. . . . Since this is below the required minimum of 3.00 on a 4.00 scale you will be placed on limited status. To regain full graduate standing and be eligible to receive the master's degree you must raise your cumulative grade point average. Specifically, you must raise your cumulative GPA to at least a 3.00 by the end of the Spring 1998 semester. Your GPA will be calculated on LIR courses taken since you began the LIR master's program in Fall 1997. Failure to achieve this minimum likely will result in your being dropped from the LIR graduate program.
(LeRoy letter to Pl., dated January 23, 1998.) Professor LeRoy also advised Plaintiff to take only three units during the Spring 1998 semester. During the spring semester, Plaintiff enrolled in three classes. After the spring semester, Plaintiff's cumulative GPA was 2.959, below the 3.0 GPA required by the ILIR and the Graduate School and specified in the Committee's letter.

  According to the ILIR handbook and procedure, when a student's academic standing is at issue, the Committee will consider whether to retain or dismiss the student from the ILIR program. (ILIR Handbook, p. 11.) The Committee will then offer a recommendation to Professor Feuille, the ILIR director, who makes the final decision. (LeRoy dep., pp. 58, 85; Hendricks dep., p. 67.) Generally, Professor Feuille is not involved in the Committee's decision-making process. (LeRoy dep., pp. 33, 58; Feuille dep., pp. 13-14.)

  After the spring semester, Plaintiff's cumulative GPA of 2.959 triggered the Committee's review process. Pursuant to ILIR procedures, the Committee considered whether to retain or dismiss Plaintiff from the program. At that time, the Committee consisted of Professor LeRoy, Elissa Perry, Professor Martocchio, and Gregory Northcraft. (LeRoy dep., p. 35.) On June 1, 1998, Professor LeRoy informed the Committee that Plaintiff's cumulative GPA was below 3.0, described the January 1998 letter the Committee had sent to Plaintiff and ILIR Policy, and then stated as follows:
To this, I would add my personal observation. Lonnie not only lacks mitigating circumstances, but in fact, presents aggravating circumstances in the form of dismissal from a graduate assistant job. This is extremely rare, and says something about his work standards. . . . I would also add that this proposed action [(to dismiss him from the ILIR program)] is consistent with ILIR's previous cases that present similar facts (and these lacked the aggravating factor).
(Email message to Committee, dated June 1, 1998.) Professor Feuille subsequently decided to dismiss Plaintiff from the ILIR program.

  Professor Martocchio testified that a student's performance in his assistantship would, in general, be completely independent from academic performance, and he did not consider the PSO assistantship a factor in his decision to recommend dismissing Plaintiff from the master's degree program. (Martocchio dep., pp. 34-35.) He also testified that the only factor that he considered in making his decision was Plaintiff's academic status. (Martocchio dep., pp. 40-41.)

  The evidence of the email discussion among the Committee members indicates that no one spoke in favor of retaining Plaintiff in the program. In his journal, Plaintiff stated that Professor LeRoy told him the Committee had originally voted to retain him and Professor Feuille intervened and told the Committee to recommend dismissal. (Brewer ex., #25, p. 25.) Plaintiff's testimony regarding what Professor LeRoy told him does not raise a material issue as to what the Committee formally recommended. We accept as true Plaintiff's statement that LeRoy told Plaintiff that Feuille had intervened in the process. Nevertheless, even if LeRoy's statement to Plaintiff accurately characterized the process by which the Committee reached its ultimate decision to recommend dismissal, this does not affect the analysis. It is undisputed that the Committee officially recommended dismissal. Furthermore, whether Feuille decided to dismiss Plaintiff from the program by affirming the Committee's recommendation or by intervening at an earlier stage, both parties agree that Feuille was the final decision-maker.

  On June 18, 1998, Plaintiff received a letter from Professor Feuille, informing him that ILIR had dropped him from the graduate program. (Brewer ex., #25, p. 25.) On September 3, 1998, he received another copy of the letter confirming his dismissal from the program. (Brewer ex., #25, pp. 1-2.) The letter stated that he had been dismissed because his GPA did not satisfy ILIR requirements and also explained the process for appeal. Plaintiff did not appeal Feuille's decision.

  Professor Feuille testified that Plaintiff was dismissed from the program based on his failure to achieve the required GPA. Feuille did not consider the assistantship at all in deciding to dismiss Plaintiff. Feuille testified as follows: "I made the decision to dismiss him from the program because he had been pointedly informed in January that he was on academic probation. He had one semester to remove himself. He was told what the target he needed to meet was and he failed to meet it. And he was told what the consequences would be." (Feuille dep., pp. 39-40.) Feuille also testified as follows: "He was below 3.0, and . . . he had been told, all right, you got to get your cumulative GPA up to this particular level. He didn't. And he had been told what the consequence would be if he didn't. And it was a very straightforward decision made on that basis." (Feuille dep., p. 42.)

  It is undisputed that ILIR policy is to "drop from the master's program those students who do not achieve at least a 3.0 GPA after two semesters" and that exceptions to this rule "will be made only in extraordinarily compelling academic circumstances." (ILIR Handbook, p. 11, attached to Leroy's dep. as Ex. 6.) The ILIR Handbook addresses academic standing as follows:
Students . . . whose first semester GPA falls below a 3.0 will have their records carefully scrutinized by the On-Campus Committee ("Committee"). The Committee may recommend to the Director the immediate dismissal of students whose first semester performance is seriously deficient. The Committee may decide that other students will be allowed to continue in the program for a second semester. If so, the Committee will inform these students, in writing, that they will be allowed to continue in the program under the following conditions: (1) they will remain on limited status, (2) they should be enrolled on a full-time basis [(footnote omitted)]; (3) they must bring their GPA up to at least a 3.0 by the completion of their second semester, and (4) they will be dropped from the program if they fail to achieve this 3.0 GPA standard after two semesters. . . . The Committee will carefully scrutinize the records of such students immediately after their second semester. Those students who fail to meet the Committee's condition(s) will be recommended to the Director for dismissal from the master's program. The intent of this paragraph is to drop from the master's program those students who do not achieve at least a 3.0 GPA after two semesters. Exceptions to this rule will be made only in extraordinarily compelling academic circumstances.
. . . .
Students who wish to appeal their dismissal must petition the Director, in writing, for readmission.
(ILIR Handbook, pp. 11-12.)

  Feuille has been ILIR director since 1994. During that time, Feuille testified that he could not think of any time when the Committee recommended retaining a student who had a GPA less than 3.0 after two semesters. (Feuille dep., p. 32.) He remembered one occasion where a student with a GPA of less than 3.0 was ultimately allowed to return to ILIR. On that occasion, he first agreed with the Committee's recommendation to dismiss the student because her GPA was below 3.0 at the end of two semesters. (Feuille dep., p. 35.) The student appealed the dismissal, and as a result of the appeal, Feuille learned that she had followed incorrect advice from a faculty member. (Feuille dep., p. 34-35.) Because her failure to achieve a 3.0 was the result of her reliance on the mistaken advice of a faculty member, he rescinded her dismissal and allowed her to return to the ILIR program.

  B. Plaintiff's Assistantship

  In conjunction with his enrollment in the ILIR master's degree program, Plaintiff was offered a one-quarter time research assistantship. He was assigned to work at the PSO. Denise Hendricks was director of the PSO at the time and Kerrin Thompson was special assistant to Hendricks. Thompson was Plaintiff's supervisor in terms of his hours and overall assignments; however, he worked on different projects during his assistantship and various people supervised the particular projects.

  In October 1997, Plaintiff brought his fiancée, a Caucasian, to the PSO to meet some of his coworkers. He stated in his journal that Thompson "seemed surprised at the race of my fiancee and her posture became noticeably and increasingly hostile afterwards." (Brewer ex., #25, p. 5.) Elyne Cole, a PSO employee who is African-American, testified that she observed that Thompson had a good opinion of Plaintiff and she did not observe any negative attitude or change in Thompson's attitude toward Plaintiff at any time up to the time of his discharge. (Cole dep., pp. 18-22.)

  During the fall semester, Plaintiff worked primarily on one assignment. He testified that he was allowed to schedule his hours and his own deadline for completion of the project. He was unable to complete the project by his chosen deadline and asked for an extension until the following Monday. When he informed Judy Baker, his supervisor on the project the he could not complete it as planned, she told him that he could turn it in on Monday and that Denise Hendricks and Kerrin Thompson wanted to meet with him. (Brewer ex., #25, p. 8.) He was able to complete the project by Monday. Both Thompson and Hendricks were unhappy that he had not met his initial deadline and as a result, each of them met separately with Plaintiff to discuss his performance. Hendricks spoke to him regarding problems with attendance and failure to meet deadlines. (Hendricks dep., pp. 20-21.) After Hendricks looked at Plaintiff's completed project, she told him that she was very happy with it and that she may have acted a bit too hastily in her previous criticism of him for turning the project in late. (Plaintiff dep., pp. 60-61.)

  At some point during the fall semester, Hendricks spoke to Professor Feuille or Susan Sands, the assistant director at ILIR, about Plaintiff's performance. Sands offered to switch Plaintiff to another assignment for the remainder of his assistantship. (Hendricks dep., pp. 20-21.) Hendricks wanted Plaintiff to continue at the PSO, provided he could meet PSO's expectations. (Hendricks dep., p. 21.) Feuille subsequently sent Plaintiff a letter dated January 23, 1998, in which he stated that Plaintiff's PSO supervisors had "indicated that `your [Plaintiff's] approach to your job duties lacked commitment and a professional attitude toward the timely completion of your assigned work.'" (Feuille letter to Pl. dated January 23, 1998.) Professor LeRoy also referred to his performance in his January 23, 1998, letter to Plaintiff on behalf of the Committee, in which he stated: "I also had reports of sub-par performance from faculty and supervisory staff from the campus Personnel Services Office." (LeRoy letter to Plaintiff dated January 23, 1998.)

  Plaintiff testified that he had no more conversations with anyone at PSO regarding his job performance until the day Denise Hendricks terminated his assignment at the PSO. (Brewer dep., pp. 62-63.) In April 1998, a problem arose related to Plaintiff's parking tag. Plaintiff testified that when he first began his assistantship, Thompson gave him a parking tag and told him he could use it to park either at the PSO or at the ILIR building when he was doing work there for the PSO. (Brewer dep., pp. 65-67.) A parking tag lists the code for the parking lot in which the tagholder is authorized to park. E7 is apparently the code for the PSO lot and C8 is the code for the ILIR parking lot. (Hendricks dep., pp. 50-52.) Plaintiff testified that he did not write "E7" on the tag, and he "may have written the C8" but he was not sure. (Brewer dep., pp. 66-67.) Alternatively, Plaintiff admitted that he did write one of the lot numbers on the tag, consistent with Thompson's instructions. (Brewer ex., #25, p. 17.) Regardless of whether Plaintiff or someone else wrote C8 on the tag, Plaintiff asserts that this was consistent with the instructions Thompson had given him regarding which lots he was allowed to park in.

  At some point, the parking tag tore so it would not hang on Plaintiff's mirror. Plaintiff tried laying it on the dashboard, but he received a ticket. Plaintiff then took his tag to Parking Services to get a replacement. Parking Services observed that Plaintiff's tag listed two lots, E7 and C8. Parking Services informed him that he should not have a tag to park in the ILIR lot and they would check the application to figure out where he was authorized to park. (Brewer dep., p. 68.)

  Parking Services subsequently called the PSO and spoke to Thompson. Thompson testified that Parking Services was concerned because the parking tag had two lot numbers written on it; one that they knew they had authorized, and one that they did not think they had authorized. (Thompson dep., p. 27.) She testified that she told Denise Hendricks what Parking Services had told her; that Plaintiff had filled in another lot number on the parking tag. Specifically, Thompson told Hendricks that she "had received a call from parking services that . . . one of our hang tags had been altered to allow Lonnie to park in another lot." (Thompson dep., p. 29.) Elyne Cole testified that she heard Thompson tell Denise that Parking Services said the parking tag had been altered. (Cole dep., p. 21.) A few days before April 21, 1998, Plaintiff went to work at PSO and met with Thompson. (Brewer dep., pp. 74.) He testified as follows:
Kerrin [Thompson] asked me to come into her office, she was irate. She was irate because of the — the issue with the tag because I wrote C8 on it. And she explained to me that I wasn't supposed to have the tag at all and that she had gone on a limb and basically falsified the information on the application so that I could have a tag. So she was like very upset and she was being very belligerent I would call it and inappropriate in both her tone and what she was saying to me.
So at one point I finally — I stood up . . . and . . . I asked her, you know, not to speak to me like I'm some kind of child. And, you know, she got even more upset that I was pushing back and under her breath mumbled a couple things, and I said, you know, what did you say?
And so then eventually I said, look, I don't have to take this, and I started to walk off. And she called me a n____ as I was walking out the door, and I turned back around, and asked her to repeat what she said. And she, you know, didn't repeat that specifically but said, you know, a few other things, and then I felt like, you know, it was time to walk out of the office. And she said something to the effect of, you know, get out of here and — I don't even remember exactly what else she said.
(Brewer dep., pp. 75-76.) In addition, Plaintiff stated in his journal that Thompson said to him, "I am through with you people." (Brewer ex., # 25, p. 18.)
  The same afternoon, Plaintiff met with Denise Hendricks and Hendricks informed him that she was terminating his assistantship effective April 21, 1998. Regarding that meeting, Plaintiff testified as follows:
[At that meeting,] she officially, you know, terminated me and explained that she really didn't feel like this was — this issue merited termination, but that she had a relationship with the . . . parking services and that, you know, she was afraid that she would lose her parking flexibility if somebody didn't you know, in effect pay for this.
(Brewer dep., p. 77.) Plaintiff also stated that he told her about his conversation with Thompson and Hendricks told him that was something he would have to work out with Thompson. (Brewer dep., p. 78.) In his journal, Plaintiff stated that, during this meeting, he told her, "I understand that what I did was wrong. However, I do not understand why I am being treated this way. Kerrin gave me the tag and told me to park." (Brewer ex., #25, p. 20.) He realized that Hendricks "simply wanted [him] out" when she said, "you admitted to altering the temporary parking tag, so I did not need to know much more." (Brewer ex., #25, p. 20.) He also said that Hendricks told him she needed to protect her relationship with Parking Services. (Brewer ex., #25, p. 20.)

  Hendricks testified that Plaintiff was permitted to park in the PSO lot which was immediately adjacent to the PSO office and Thompson did not have the authority to tell him to add the code for the ILIR lot to the parking tag. (Hendricks dep., pp. 51, 49.) PSO had temporary tags that they could give to people for various purposes; however, they were limited to use in the PSO lot. (Hendricks dep., p. 53.) Hendricks is not aware of any occasions on which she or anyone in the PSO office provided temporary tags to allow people to park anywhere except the PSO lot. (Hendricks dep., p. 53.) Ronald Bacevich stated in his affidavit that during 1997-98, the PSO had one or ...


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