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Elizabeth Hoppe v. Lewis University

September 30, 2011

ELIZABETH HOPPE, PLAINTIFF,
v.
LEWIS UNIVERSITY, DEFENDANT.



The opinion of the court was delivered by: Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER

Plaintiff Elizabeth Hoppe, a professor at Defendant Lewis University, has filed this suit against Lewis seeking damages for violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the American with Disabilities Act, 42 U.S.C. § 12101. R. 7.*fn1 Lewis has moved for summary judgment on all of Hoppe's claims. R. 32. Additionally, Hoppe has moved to strike Lewis's reply [R. 57 and R. 57(corrected)], and Lewis has moved to disqualify Hoppe's proposed expert witness. R. 49. As explained below, Hoppe's motion to strike the reply will be converted into a sur-reply, but the motion to strike will be denied-the duplicate motion [R. 58] raising the same issue is also denied. Furthermore, Lewis's motion to disqualify the expert [R. 49] is also denied for purposes of this motion, because even if the purported evidence is taken into account, summary judgment must be granted. Finally, because there are no genuine issues of material fact, and because Lewis is entitled to judgment as a matter of law, the motion for summary judgment [R. 32] is granted.

I.

The following facts are drawn from the parties' Local Rule 56.1 materials, R. 42; R. 53,*fn2 and is presented in the light most favorable to Hoppe, the non-moving party, with all reasonable inferences drawn in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); E.E.O.C. v. AutoZone, Inc., 630 F.3d 635, 639 (7th Cir. 2010). Hoppe, who is Caucasian, was hired by Lewis in 1999 to serve as an Assistant Professor in the Philosophy Department of the University. R. 42 ¶ 3. In 2005, Hoppe was promoted to the position of Associate Professor with tenure in the Philosophy Department. Id. Hoppe holds that position at this time. Id.

Hernando Estevez, a Latino from Colombia, was hired in 2005 to a temporary, one-year, non-tenure-track position in the Philosophy Department. Id. ¶ 8. Contrary to Lewis's policy, Estevez was permitted to teach courses at other institutions because he had already made a commitment to those schools before joining Lewis. Id. ¶ 9. Hoppe disputes that this policy exists, citing to an exhibit from her deposition, R. 39, Exh. 1, 121. But, like many of the factual disputes Hoppe tries to present, the supporting material she cites in support does not actually refute Lewis's asserted fact. Moreover, the Court is left on its own to infer how the cited sources support Hoppe, because Hoppe does not explain the basis of her dispute, but simply writes, "disputed," and lists the citations.*fn3 For the purported dispute over the policy governing teaching at other schools, the cited exhibit provides that "teaching at other colleges or universities is not permitted, unless approved in writing." Id. Additionally, Hoppe cites to Dean Durant's deposition, R. 35, Exh. 5, 14, to dispute that such policy ever existed. But that portion of Durant's deposition notes that it was always the policy that a teacher could not teach outside of Lewis but could do so with special permission, and that everyone understood that policy. Id. Hoppe does not dispute that the exception was granted to Estevez for just the one year. R. 42 ¶ 11. After his year was completed, Estevez was offered a full-time, tenure-track position, but rejected the offer. Id. ¶ 12. Hoppe alleges that Estevez did not accept the position because he felt discriminated against. Id. ¶ 13. In Hoppe's deposition, she testified that Estevez never said he felt discriminated, but instead, in Hoppe's opinion, told her "indirectly" that he was treated unfairly. R. 39, Exh. 1, 55-56. Specifically, Hoppe says that Estevez told her that he met opposition from Dean Durante when Estevez wanted to negotiate the contract he was offered. Id. Two months after Estevez rejected the offer, Hoppe wrote a final evaluation of Estevez, expressing regret over Lewis's decision not to hire Estevez, but she did not include any reference to discrimination or unfair treatment. R. 42 ¶ 15.

The position was then offered to and accepted by Tracey Nicholls. Id. ¶ 16. Lewis contends that the position was offered as a non-tenure-track, one-year position, like the position Estevez was originally offered. Id. Hoppe argues that although the contract said the position was non-tenure, she was told by Durante that the position was a tenure position, but that the contract was intentionally worded as a non-tenure position for immigration law purposes. R. 39 Exh. 1, 71-72.

Hoppe filed a Charge of Discrimination with the EEOC, alleging that Estevez was discriminated against because the contract he was offered had several restrictions that were not imposed on Nicholls. R. 42 ¶ 25. First, Hoppe argues that Estevez was not permitted to teach at other institutions in his contract, but admits that she has no knowledge that Nicholls was permitted to teach at other institutions, or that she has. Id. ¶¶ 26-27. Second, Hoppe alleged that Estevez was not going to be permitted to apply his year of teaching toward the time to make tenure. Id. ¶ 32. Yet Hoppe knows of no faculty member who has been permitted to apply 1 year of a non-tenure position to the tenure track, although she does know of one professor who reached tenure faster than the six years typically required. Id. ¶ 34. Third, Hoppe alleged that Lewis acted in a discriminatory manner by not allowing Estevez to teach graduate courses, but admits that not every tenure-track faculty member gets to teach graduate courses. Id. ¶ 35.

In the fall of 2006, Hoppe was granted a sabbatical. R. 42 ¶ 17. On August 10, 2006, Hoppe was notified that due to reorganization within the University, it would be helpful if she could pack up her office, which was on loan from the education department, which needed the space back. Id. ¶ 19. Hoppe was never prohibited from entering the University's grounds, and she was provided an office to share with another professor. Id. ¶ 21. Other professors share offices at Lewis, especially when the office is large, like the one Hoppe shared. Id.*fn4 When Hoppe returned from sabbatical she was given an office in the academic building, but she refused to use the office, removed her name from the door, and modified her syllabus to indicate that she would not meet students in the office. Id. ¶ 22.*fn5 Hoppe has not used an office since Spring 2007, although she has been offered five offices. Id. ¶ 23.

Hoppe filed a second Charge on July 27, 2007, alleging that Lewis retaliated against her for filing the first Charge. Id. ¶ 36. The alleged retaliation was that Dean Durante stopped speaking to her. Id. ¶ 37. As a result of the lack of communication, Hoppe alleges that she was no longer able to serve on committees, or was denied access to committees when she expressed interest. Id. ¶ 38-44. Additionally, Hoppe claims all of the following happened in retaliation: she was removed from teaching in the aviation department, id. ¶¶ 45-55; Dean Ayers initiated sanctions against her for missing multiple meetings, id. ¶ 56; she was not permitted to participate in the final version of the Philosophy Department Program Review, because she missed the deadline for writing a response, id. ¶ 57; she applied for, but did not receive, a particular grant (called a Doherty grant), id. ¶ 58; after Dean Durante received two harassing letters and reported them to the police, she included Hoppe's name on a list of a dozen people who "might have a problem or issue or be angry with her," id. ¶ 59.

In August 2007, Hoppe saw a doctor who diagnosed her with adjustment disorder with anxiety and depressed moods. Id. ¶ 62. The effects of the anxiety are severe. At times, Hoppe is limited to checking email once a week. R. 53 ¶ 2. On occasions, she has required the assistance of friends, her therapist, and her attorney to read her email and summarize it for her. Id. She has avoided the internet. Id. She has gone a full month without checking her voice-mail, even when she is told by friends that they left her a message. Id. Additionally, she has gone a month without opening mail. Id. Further, Hoppe has been unable to use offices offered by Lewis due to their proximity to individuals who exacerbate her adjustment disorder. Id. ¶ 3.

In seeking an accommodation for Hoppe's disorder, her doctor sent a letter to Lewis on August 27, 2008 asking that Hoppe's office be moved. R. 42 ¶ 69. The letter did not say where Hoppe should be moved to or what office would be suitable. Id. Accordingly, Lewis responded with a letter asking questions to determine how to accommodate Hoppe. Id. ¶ 71. Hoppe took the letter to her doctor who handwrote notes on the letter; Hoppe retained the letter with the handwritten notes. Id. ¶ 72. Lewis received another letter on September 30, 2008, which still failed to explain where an appropriate office would be located. Id. ¶ 73. In response to the doctor's letter, Lewis offered Hoppe three different offices in the academic building, where she currently had an office which she refused to use; all three were rejected. Id. ¶ 74. On January 19, 2010, a third letter was received from Hoppe's doctor. Id. ¶ 75. The letter suggested that Hoppe be moved to a different "location," but did not identify who in the current building was causing a problem for Hoppe, despite Lewis's explicit request for that information. Id. Three days after receiving the letter, Lewis offered Hoppe an office in the "LRC" building to comply with Hoppe's doctor's orders. R. 34, Exh. B9. On February 25, 2010, Hoppe accepted the office, but ultimately never moved into it. R. 42 ¶ 77.

Additionally, Lewis was never provided an ergonomic chair, as requested by Hoppe's doctor, because Hoppe never accepted an office. Id. ¶ 80. Lewis has attempted to meet with Hoppe to provide an ergonomic chair, but Hoppe has not participated in any discussions about arranging for an ergonomic chair because she has had anxiety issues. R. 39, Exh. A, 377-378. On April 16, 2010, Hoppe's doctor sent another letter specifically listing what buildings were not suitable for Hoppe. R. 53 ¶ 6. Hoppe's current office situation is not included in the summary judgment filings, presumably because the letter was written after Lewis filed its motion, and Hoppe's response came shortly after.

Hoppe filed this action against Lewis alleging discrimination and retaliation under Title VII of the Civil Rights Act of 1964, Section 1981, and the American with Disabilities Act. R. 7, Exh. 1. Count One asserts an associational discrimination claim, alleging that Hoppe was denied the benefits of a diverse colleague because Lewis discriminated against Estevez. Id. ¶¶ 61-64. Count Two is a retaliation claim based on Hoppe's alleged protected activity against Lewis's race discrimination. Id. ¶¶ 65-70. Count Three alleges the same associational discrimination claim as Count One, but Count Three invokes 42 U.S.C. § 1981. Id. ¶¶ 71-75. Count Four alleges that Lewis retaliated against Hoppe, in violation of § 1981, for reporting Lewis's discrimination of Estevez. Id. ¶¶ 76-80. Count Five is a claim for failure to provide Hoppe with a reasonable accommodation under the ADA. Id. ¶¶ 81-88. Count Six is a claim that Hoppe was retaliated against for complaining to the EEOC that her disability was not being accommodated. Id. ¶¶ 89-92.

II.

Summary judgment must be granted if "the movant shows that 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). In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).

To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment will be granted against "a party who fails to make a showing sufficient 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. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.

III. A. Related Motions

Before addressing Lewis's motion for summary judgment, there are two motions that aim to shape the evidence and arguments that are before the Court for the summary judgment motion. Lewis filed a motion to disqualify Hoppe's expert witness, Dr. Peter Kirstein. R. 49. Plaintiff has filed a "motion to strike portions of Defendant's reply or for alternative relief." R. 58.

1. Motion to Disqualify Dr. Kirstein

Dr. Peter Kirstein is proffered by Hoppe as an expert to testify regarding a tenured professor's right to have an office generally, and also specifically while on sabbatical. R. 49 at 2. Lewis objects to Kirstein's expert testimony, and argues that it is improper under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). R. 49 at 7. Naturally, Hoppe defends her expert, and argues that Kirstein's expert testimony meets Daubert's standard. Neither party discusses whether the proposed evidence qualifies as expert testimony under Rule 702, which governs scientific, technical, or otherwise specialized knowledge. As it turns out, the Court need not address whether the proposed testimony would survive a Daubert hearing or Rule 702 screening. For purposes of deciding the summary judgment motion, the Court will consider Dr. Kirstein's testimony. As discussed below, even with Kirstein's testimony, summary judgment must be entered for Lewis as to all counts.

2. Motion to Strike or for Alternative Relief

Hoppe has moved to strike portions of Lewis's reply brief, contending that it raises an argument-that Hoppe could not complete essential functions of her job-for the first time, and has waived the argument by not asserting it in its opening memorandum. R. 54. Alternatively, the "motion to strike" responds to Lewis's argument that Hoppe is unable to complete the essential functions of her position. Id. Hoppe's motion to strike will be denied, and the motion will be treated as a sur-reply. The Court will consider Lewis's ...


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