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Abuelyaman v. Illinois State University

June 4, 2010


The opinion of the court was delivered by: Michael M. Mihm United States District Judge


Now before the Court is Plaintiff Eltayeb Abuelyaman's Motion for Reconsideration of this Court's Ruling on Defendant's Motion in Limine [#74]. For the reasons set forth below, the motion is DENIED.


Abuelyaman was employed by Defendant Illinois State University's ("ISU") School of Information Technology from the fall of 2001 until the fall of 2006 as a probationary, tenure-track Associate Professor. He was the only non-tenured Associate Professor in the IT School. He is of Yemeni and Saudi Arabian descent, and is Muslim. The IT School's Faculty Status Committee ("SFSC") annually evaluates probationary, tenure-track faculty members, and makes recommendations on reappointment, tenure and promotion, and pay raises. Student evaluations are considered by the SFSC when it does its own evaluation of faculty members. The 2006 SFSC members made the decision not to reappoint Abuelyaman, and he was told in a letter dated March 16, 2006, that he would not be reappointed past May 15, 2007.

Abuelyaman brought suit against ISU claiming retaliation and discrimination on the basis of his race, national origin, and religion. ISU's motion for summary judgment was granted on Abuelyaman's discrimination claim. The parties now proceed to trial on Abuelyaman's claim that he was not reappointed as retaliation for his alleged complaints regarding student evaluations and the fall 2005 search committee process to fill a Telecommunications Management position. ISU filed its first Motion in Limine seeking to exclude the performance evaluations of Drs. Kappa, Theta, and Sigma, Dr. Kappa's tenure packet, information regarding the DAA Office's investigation into Dr. Zeta's termination, the investigative findings into Dr. Delta's complaint of discrimination, and certain other exhibits. The Court ruled that evidence regarding Drs. Kappa, Theta, and Sigma's performance and/or tenure is barred from use at trial, as none of them were similarly situated to Abuelyaman. The Court further ruled that evidence of Abuelyaman's participation in the DAA Office's investigation into Dr. Zeta's termination is barred from use at trial, and the investigative findings into discrimination complaints by Dr. Delta are barred because he was not similarly situated to Abuelyaman.


"Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Caisse Nationale de Credit v. CBI Industries, 90 F.3d 1264, 1269 (7th Cir. 1996). It is not appropriate to argue matters that could have been raised in prior motions or rehash previously rejected arguments in a motion to reconsider. Id. at 1270.*fn1

I. Drs. Kappa, Theta, and Sigma's Performance Evaluations, Dr. Kappa's Tenure Packet

When Abuelyaman first opposed ISU's motion to exclude Dr. Kappa's and Dr. Theta's performance evaluations, he focused on the contested relevancy of those exhibits, and summarily stated that those professors did not have to be similarly situated in all material respects to him. In his Motion to Reconsider, Abuelyaman delves further into the similarly situated argument, and cites to cases discussing the similarly situated analysis. ISU continues to argue that there are facts that distinguish the alleged comparators, but initially contends that Abuelyaman improperly raises this argument for the first time in his motion to reconsider. Because Abuelyaman discusses the issue of similarly situated in his Motion to Reconsider, which the Court discussed in ruling on ISU's Motion in Limine, the Court will address Abuelyaman's argument.

When the Court originally ruled on ISU's first Motion in Limine, it did follow Seventh Circuit precedent which calls for a "common-sense" inquiry into whether individuals are sufficiently similar to allow for meaningful comparison. See Humphries v. CBOCS West, Inc. 474 F.3d 387 (7th Cir. 2007); Keri v. Bd. of Tr. of Purdue University, 458 F.3d 620 (7th Cir. 2006) (explaining that a plaintiff must establish other employees were "similarly situated with respect to performance, qualifications, and conduct"). The Court ruled that Dr. Kappa was not similarly situated to Abuelyaman because Dr. Kappa was tenured, unlike Abuelyaman. The Court determined Dr. Theta was also not similarly situated to Abuelyaman because the former was an Assistant Professor, unlike Associate Professor Abuelyaman, and had created an entirely new sequence of courses and secured a grant for ISU, again unlike Abuelyaman. Though Abuelyaman argues that rank is not the only relevant factor, if a factor at all, ISU's Faculty Appointment, Salary, Promotion, and Tenure Policies make it clear that rank and tenure certainly differentiate employees, and more importantly, distinguish the employer's treatment and evaluation of them. See Keri, 458 F.3d at 644 (tenured faculty, by virtue of their tenure, were not directly comparable to the plaintiff in all material respects). If it were as Abuelyaman suggests, it would be pointless to have differing ranks and tenure. In regard to Dr. Theta, his efforts in creating a new sequence of courses and securing a grant for ISU are differentiating circumstances which the Court simply cannot overlook in order to find him similarly situated to Abuelyaman. For the foregoing reasons, Abuelyaman's motion to reconsider the Court's ruling on the evidence of Dr. Kappa's*fn2 and Dr. Theta's performance and evaluations is denied.

Abuelyaman next argues that evidence relating to the employment of Drs. Kappa, Theta, and Sigma is admissible even if those professors were not similarly situated to him, because the evidence is relevant to whether ISU's stated reasons for his termination were pretextual. Abuelyaman seeks to introduce evidence that it was the practice of Dr. Dennis and the SFSC to warn non-tenured professors who were in danger of non-renewal that their contracts would not be renewed, and in some cases to counsel and mentor them in an effort to improve their performance. ISU contests the relevancy of this evidence, emphasizing the facts that these other professors were of different ranks than Abuelyaman, and that he was continually informed of his own deficiencies in yearly evaluations.

Abuelyaman's argument on this point fails. The Court rejected that argument when Abuelyaman originally made it in his Response to ISU's Motion for Summary Judgment. The Court found that ISU's internal procedures were followed in Abuelyaman's situation where he was subject to annual performance evaluations in which suggestions were made as to how to improve his performance. Therefore, this evidence of alleged warnings given to other professors at ISU is barred from use at trial.

Abuelyaman's final attempt to get evidence of Dr. Kappa's, Dr. Theta's, and Dr. Sigma's yearly performance evaluations admitted at trial rests upon the argument that because ISU uses comparative evidence in support of its case, he should be permitted to do the same without regard to the similarly situated analysis. ISU disputes that contention, stating that it wishes to offer evidence of Abuelyaman's rank, as compared with other IT School faculty evaluations in teaching ability, which is relevant to the issue being decided, whereas other professors' performance evaluations are not probative of any issue to be decided. Defendant's proffered use is limited, extending only so far as to show Abuelyaman's rank on evaluations in terms of teaching ability. On the other hand, Abuelyaman's proffered use of the other faculty members' evaluations extends to the substance of those evaluations. Yet again, the lack of similarity between ...

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