United States District Court, C.D. Illinois, Peoria Division
GILLES K. KOUASSI, Plaintiff,
WESTERN ILLINOIS UNIVERSITY, Defendant.
ORDER & OPINION
JOE BILLY McDADE, Senior District Judge.
This matter is before the Court on Defendant's Motion for Summary Judgment and Plaintiff's motion to strike his deposition transcript. (Docs. 66, 81). Both motions are fully briefed and ready for decision. For the reasons discussed below, Defendant's motion is granted and Plaintiff's motion is denied.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted where "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 ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009). All inferences drawn from the facts must be construed in favor of the non-movant. Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011).
To survive summary judgment, the "nonmovant must show through specific evidence that a triable issue of fact remains on issues on which he bears the burden of proof at trial." Warsco v. Preferred Technical Grp., 258 F.3d 557, 563 (7th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). If the evidence on record could not lead a reasonable jury to find for the non-movant, then no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). At the summary judgment stage, the court may not resolve issues of fact; disputed material facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
This lawsuit emerges from the way in which Dr. Gilles Kouassi was evaluated by Western Illinois University during his promotion from Assistant Professor to Associate Professor of Chemistry, during his failed application for tenure, and during applications for two Professional Achievement Awards. Dr. Kouassi also points to repeated other instances of mistreatment that he believes he suffered while employed by WIU.
Plaintiff filed his original complaint on June 10, 2013. (Doc. 1). At that time, he was represented by counsel. On December 18, 2013, while still represented by the same attorney, Dr. Kouassi filed his First Amended Complaint. (Doc. 18). Shortly thereafter, the relationship between Dr. Kouassi and his first attorney appears to have deteriorated. On December 26, 2013, Dr. Kouassi wrote Judge Gorman, who was then the presiding Magistrate Judge in the matter, and asked that the case be stayed so he could find a new attorney. (Doc. 22). In a January 31, 2014 minute entry, the Court granted Dr. Kouassi's motion to terminate his first attorney. On February 26, 2014, Dr. Kouassi's second attorney filed an appearance. (Doc. 25). Dr. Kouassi then filed a second amended complaint on April 22, 2014. As with his first attorney, their relationship deteriorated. On August 25, 2014, the second attorney - at Dr. Kouassi's request - filed with the Court a motion to withdraw (Doc. 41), which Magistrate Judge Hawley granted on the same day.
From that point forward, Dr. Kouassi has proceeded pro se. On October 23, 2014, he filed his third, and final, amended complaint, which brought claims against Defendants Western Illinois University, Rose McConnell, and Susan Martinelli-Fernandez. (Doc. 46). On February 4, 2015, the Court dismissed Counts V, VI, VII, and VIII from the Third Amended Complaint. This order had the effect of terminating Rose McConnell and Susan Martinelli-Fernandez as defendants. (Doc. 61).
Defendant Western Illinois University has moved for summary judgment on all of the remaining claims, which include: a Title VII claim for discrimination on the basis of race and color (Count I); a Title VII claim for discrimination on the basis of national origin (Count II); Title VII claims for retaliation (Count III and IX); a claim brought under 42 U.S.C. § 1981 (Count IV); and a claim based on National Origin Discrimination and Retaliation (Count X).
Before proceeding to Dr. Kouassi's claims for relief, the Court must take care of two initial matters. First, Dr. Kouassi has issued a blanket objection to the use of his deposition testimony, and has also moved to strike the deposition transcript. Second, Dr. Kouassi has presented a number of factual assertions that are not supported by evidence in the record. Before moving forward, the Court wishes to explain for Dr. Kouassi's benefit the reasons that it must disregard many of his factual assertions.
I. Disputes over Dr. Kouassi's Deposition
In his motion to strike his deposition transcript, Dr. Kouassi argues that "the large majority of the responses he gave during the deposition was forged, transformed, or misrepresented." (Doc. 81 at 4). He asserts that he wrote to Defendant's counsel on March 4 and 5 and requested corrections in order to "reinstate the true deposition, " but did not receive a response to either letter. ( Id. ). Based upon this, Plaintiff accuses Defendant of forging the transcript of his deposition. He argues that "a forged and falsified transcript of deposition in a legal procedure is a scandalous matter, " and asks the Court to "prevent any use of the forged transcript of deposition which remained without Plaintiff's signature, " because "it does not represent Plaintiff's true responses to the interrogatories he was submitted to." ( Id. at 5).
Defendant took Dr. Kouassi's deposition on February 3, 2015 at the United States District Courthouse in Peoria, Illinois before a certified shorthand reporter. Contrary to Dr. Kouassi's understanding, it is she, a third-party, and not Defendant or Defendant's counsel, who created the transcript. At the close of the deposition, as is his right, Dr. Kouassi requested the opportunity to review his deposition transcript and make necessary changes. See Fed.R.Civ.P. 30(e).
On February 16, 2015, the Court reporter sent to Dr. Kouassi a copy of the deposition transcript, along with a cover letter. (Doc. 67-1 at 285). The cover letter instructed Dr. Kouassi that he should read the transcript, "indicate any changes and/or corrections desired on the errata sheets, " "sign the signature page before a notary public, " and return the errata sheets and signature page to Defendant's counsel. ( Id. ).
Thereafter, any changes that Dr. Kouassi wished to make to his deposition transcript needed to be made pursuant to Federal Rule of Civil Procedure 30(e). Under Rule 30(e), a deponent who seeks to change his deposition in form or substance must "sign a statement listing the changes and the reasons for making them" within 30 days of being notified by the court reporter that "the transcript or recording is available."
Dr. Kouassi first wrote to counsel for Defendant on March 4, 2015. (Doc. 79-5 at 1). In his letter, he acknowledged receipt of the transcript of his deposition. He stated generally that, "the answers attributed to me in this transcript do not reflect at all what I said during the deposition. Most of the answers I gave have been seriously distorted. The magnitude of the distortion is such that it is impossible for me to make all my corrections on the document sent to me." ( Id. ). However, he endeavored to "roughly make some initial comments on a copy [Defendant] sent" and thereafter requested that Defendant's counsel "make the appropriate revisions and corrections given that the deposition has been recorded." ( Id. ). He attached a copy of the first 204 pages of the transcript with his own handwritten comments made throughout it. The annotated transcript includes some light line-editing, but it also includes a number of instances in which Dr. Kouassi altogether denied responsibility for full answers and made no attempt to correct them. ( See, e.g., Doc. 79-5 at 34, 36, 71-72). These letters suggest that Dr. Kouassi expected Defendant to create, from scratch, a new and more accurate transcript of his deposition. Because Defendant failed to do this, Dr. Kouassi moved to strike the deposition.
Dr. Kouassi's request fails for two primary reasons. First, the nature of the relief that Dr. Kouassi seeks is not consistent with Rule 30(e). When a deponent submits a statement listing changes to the deposition and reasons for the changes, he is not making a change to the actual transcript. Rather, the statement listing the changes is attached to the deposition. See Fed.R.Civ.P. 30(e)(2); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) ("[T]he rule requires that the original transcript be retained (this is implicit in the provision of the rule that any changes made by the deponent are to be appended to the transcript) so that the trier of fact can evaluate the honesty of the alteration."). Therefore, at a minimum, the Court would consider Plaintiff's deposition along with any properly-submitted errata sheet rather than striking the transcript altogether.
The Court, however, will not consider Dr. Kouassi's corrections because he did not offer them in a manner that complies with Rule 30(e). "The procedural requirements of Rule 30(e) are clear and mandatory." EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 265 (3d Cir. 2010). In order to change deposition testimony in form or substance, deponents must satisfy a number of procedural hurdles. Among them, and one that trips Dr. Kouassi, is the requirement that deponents provide a statement of reasons for necessary changes. See id. at 266. General reasons will not suffice; courts require that deponents submit a reason for every change they would like made to a deposition transcript. See Duff v. Lobdell-Emery Mfg. Co., 926 F.Supp. 799, 804 (N.D. Ind. 1996); Holland v. Cedar Creek Min., Inc., 198 F.R.D. 651, 653 (S.D. W.Va. 2001) ("The witness is also plainly bound by the rule to state specific reasons for each change."). Here, rather than providing specific reasons for each requested change to the deposition, Plaintiff has made a blanket assertion that the deposition transcript does not accurately reflect the answers that he provided. In certain places of the transcript, where Plaintiff has identified minor transcription errors that do not change the substance of his answers, the Court has little doubt that his requested changes are well-taken. Yet, in these places, Plaintiff fails to state a reason even though the rule requires that he provide one. In other areas, Plaintiff makes no attempt to change the form or substance of his answers and instead wishes to strike them altogether. In these circumstances, he has provided some kind of reason - arguing that the answer is not his own - but has not suggested any sort of changes. This, too, is not compliant with Rule 30(e).
Because Plaintiff has not complied with the procedural requirements of Rule 30(e), the Court will not only deny Plaintiff's motion to strike the deposition testimony. It will also not consider the handwritten comments and edits that Plaintiff made on his transcript and submitted to Defendant.
II. Unsupported Assertions Presented by Dr. Kouassi
Before outlining the relevant material facts, the Court believes it is prudent to make some general observations about the evidence that Plaintiff has presented in an effort to demonstrate why it is insufficient to serve the purpose that Plaintiff wishes it to serve. This review is hardly exhaustive, but is helpful as a starting point.
As the Seventh Circuit has said, summary judgment "is the put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Schacht v. Wisconsin Dep't of Corr., 175 F.3d 497, 504 (7th Cir. 1999). A plaintiff "cannot thwart summary judgment by asking a court to make inferences based on flights of fancy, speculations as to the defendant's state of mind, hunches, intuitions or rumors about matters remote from that experience." Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 508 (7th Cir. 2004).
At summary judgment, the Court must "review carefully statements of material facts and... eliminate from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement." Butler v. East Lake Mgmt. Grp., Inc., No. 10-cv-6652, 2014 WL 273650, at *2 (N.D. Ill. Jan. 24, 2014). Unfortunately for Plaintiff, much of his submission is not based upon what summary judgment requires - citations to "particular parts of materials in the record" that can be "presented in a form that would be admissible in evidence." See Fed.R.Civ.P. 56(c). Rather, he has made many assertions that are based upon hearsay or are generally outside of his personal knowledge and not supported by other evidence.
One common way in which parties often submit facts for a court's consideration at summary judgment is through affidavits or declarations that are made on the basis of personal knowledge. See Fed.R.Civ.P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by... citing to particular parts of the materials in the record, including... affidavits or declarations"); Fed.R.Civ.P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.").
Affidavits and declarations submitted by parties at summary judgment are defined by certain characteristics that allow a court to consider them. For example, an affidavit "is admissible in a summary judgment proceeding only if it is sworn to before an officer authorized to administer an oath, such as a notary public." Trapaga v. Cent. States Joint Bd. Local 10, No. 05 C 5742, 2007 WL 1017855, at *2 (N.D. Ill. Mar. 30, 2007). Declarations made pursuant to 28 U.S.C. § 1746 are "equivalent to an affidavit for purposes of summary judgment, " but need not be sworn. Owens v. Hinsley, 635 F.3d 950, 955 (7th Cir. 2011). Pursuant to § 1746, a declarant's unsworn statement can be accepted at summary judgment so long as the statement is supported by a statement "in substantially the following form": "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date)." 28 U.S.C. § 1746(2). The Seventh Circuit has gone so far as to consider verified statements made in response to motions for summary judgment, even when the responses themselves are not separate documents referred to as "declarations." For example, in Owens, the Seventh Circuit concluded that a pro se prisoner who "verified his response in opposition to the defendants' motion for summary judgment, " had done enough "to make his allegations admissible." See 635 F.3d at 954.
In his opposition to Defendant's motion for summary judgment, Dr. Kouassi has not submitted a document that he identifies as his own affidavit or declaration. He has only submitted his brief in opposition. If his brief in opposition included language sufficient to verify the truth of those factual assertions for which he has personal knowledge, the Court would be in a position in which it could consider these statements. See id. However, his brief in opposition is not notarized, as an affidavit must be (only the Certificate of Service, which asserts that he mailed a copy of his opposition to the Court is sworn to in front of notary public). See Trapaga, 2007 WL 1017855, at *2. And although he has signed his brief, ( See Doc. 77 at 84), Dr. Kouassi has neither included language that is compliant with 28 U.S.C. § 1746 nor made any other attempt to verify the truth of the statements contained in the brief. See Owens, 535 F.3d at 954. For that reason, the unsupported statements of fact that Dr. Kouassi has made in his brief are insufficient to serve as evidence at the summary judgment stage.
Supposing, however, that Dr. Kouassi had properly verified his response, many of the unsupported statements that he has included in it are statements about which he could not have personal knowledge. Therefore, they must be disregarded on that ground. Witnesses like Dr. Kouassi "may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Ani-Deng v. Jeffboat, LLC, 777 F.3d 452, 454 (7th Cir. 2015) (internal quotation marks omitted). Of course, personal knowledge includes a declarant's inferences because "most of our personal knowledge is inferential." Id. However, these inferences must be "grounded in observation or other first-hand personal experience, " and cannot be "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience." Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (quoting Visser v. Packer Eng'g Assoc., 924 F.2d 655, 659 (7th Cir. 1991) (en banc)).
It follows, then, that statements that are made without personal knowledge do not constitute competent evidence at summary judgment even if they are made in a declaration, affidavit, or otherwise verified statement. This includes, for example, hearsay statements. See Haywood v. Lucent Techs., Inc., 323 F.3d 524, 533 (7th Cir. 2003). In Haywood, a plaintiff attempted to present evidence that a defamatory statement was made against her by presenting her own testimony "that another employee told her about information received from the employee's superiors in corporate security." Id. The Court concluded that this evidence was "inadmissible hearsay on multiple levels, " and was therefore "not enough to preclude summary judgment." Id. Although the Court concluded that statements by the plaintiff's managers might have constituted non-hearsay admissions of the Defendant, it explained that plaintiff's own version of the statements, which were based "on another employee's version of the statements, which is based on the employees' superiors' version of the statements, " was not admissible. Id.
Dr. Kouassi's submission is chalk full of statements of this kind. For example, he claims that the chair of his department, Dr. Rose McConnell and his Dean, Dr. Susan Martinelli-Fernandez, stated that he would not be permitted to apply for promotion to Associate Professor unless he sought help with improving his accent. Similarly to the plaintiff in Haywood, Dr. Kouassi has no personal knowledge that either had made such a statement. Rather, he was told this by another professor, Dr. T.K. Vinod. Therefore, Dr. Kouassi's testimony that his evaluators would not permit him to apply for a promotion until he visited the language center, is based on his version of statements, which was based on Dr. Vinod's version of the Dean's statements and Dr. McConnell's statements. This is inadmissible hearsay, and cannot be considered at summary judgment. See id.
Similarly, Dr. Kouassi claims that Dr. McConnell had his name removed from a list of faculty members who were authorized to access a campus classroom. Again, Dr. Kouassi relies upon hearsay. He has no firsthand knowledge that Dr. McConnell had his name removed from the list; he was informed of this by the Chemistry Department's secretary. This is inadmissible hearsay for the same reason that Dr. Vinod's comments are inadmissible hearsay. See id.
Finally, Plaintiff also relies upon considerable amounts of hearsay in claiming that Dr. McConnell falsified a student's GPA in order to prevent her from serving as his teaching assistant. For example, he writes, "[a]fter the student explained that a wrong course was used to lower her GPA, the chair responded that she should wait until the fall 2012 to make the corrections. That is, the student selected by Plaintiff will not be the TA for Plaintiff's summer course." (Doc. 77 at 83). He asserts that that the student told him that she wrote a letter to the Office of the Dean and the Office of Equal Employment Opportunity, and it was only after she sent this letter that "the Associate Dean took action to re-instate her GPA." ( Id. ). Plaintiff relies upon statements made by his student and statements made by third-parties that his student relayed to him. Here, where this evidence is offered to prove the truth of the matter asserted, it is not competent at summary judgment. See Haywood, 323 F.3d at 533.
Unfortunately for Dr. Kouassi, it does not seem like he has conducted the kind of discovery necessary to produce admissible evidence on these points. The record does not contain depositions of or declarations or affidavits from Dr. McConnell, Dr. Martinelli-Fernandez, Dr. Vinod, the Department's secretary, or his student. Dr. Kouassi seems to acknowledge as much with respect to the incident concerning his teaching assistant. He writes in his motion, "In this particular case, the student, the Associate Dean, and Plaintiff's supervisor can testify. The Defendant can show at trial in the presence of a Jury that the allegations against him are false if that is the case instead of requesting a summary judgment." (Doc. 77 at 83). What Dr. Kouassi seems to misunderstand is that summary judgment is the time at which he must show his hand. See Schacht, 175 F.3d at 504. He cannot rely upon the promise that certain people can testify - he needs to show the evidence. He has not done that.
Dr. Kouassi has also made a number of assertions throughout his filing regarding the supposedly true reasons that WIU employees undertook certain actions. For example, he recounts the happenings of an October 19, 2012 chemistry department meeting in which the Provost attended and discussed the issue of predatory and vanity journals (which, as will become clear below, is a matter of central importance to this case). ( See Doc. 77 at 36-37). There, the Provost confirmed that articles published in such journals could not be used for promotion or tenure. Plaintiff alleges that he proposed that the University "select an external committee of peer-reviewers to review articles published by all faculty members of the Department of Chemistry at large." ( Id. at 37). He asserts that this proposal has considerable merit, in that it would be based upon the opinions of third-party experts. The Provost rejected his suggestion, an act which Plaintiff argues "was a clear indication that the provost's real intention was not to protect the integrity of the institution as he claimed, but to target plaintiff applying for tenure in less than three months." ( Id. ). Supposing that these facts were presented in a proper affidavit or declaration or in deposition testimony (they were not), the Court would still not be able to accept the inference that the Provost rejected Plaintiff's proposal out of animus rather than because he simply disagreed with it. See Widmar v. Sun Chem. Corp., 772 F.3d 457, 461 (7th Cir. 2014) (explaining that speculation into a decision maker's state of mind, which "attempts to substitute [the Plaintiff's judgment] (and thus [the Court's]) for that of the employer, " is insufficient to create a material dispute of fact that can defeat summary judgment).
Based upon these insufficiencies, as well as others that the Court will discuss later in the opinion, the Court has carefully screened the evidence presented by the parties. Unless otherwise indicated, the background facts discussed below reflect the Court's determination of the undisputed facts, and are drawn from the parties' statements of facts and responses thereto. (Docs. 67, 77, and 79).
Dr. Kouassi is a chemist who was born and raised in Ivory Coast, in western Africa. He is of African descent, and is Black. After earning a Ph.D. in Food Chemistry from the University of Helsinki in Finland in 2003 and completing a post-doctoral research fellowship at Pennsylvania State University that began in 2004, he started work in the fall of 2007 as an Assistant Professor of Chemistry for WIU. Dr. Kouassi's employment there ended in the spring of 2014, one year after Defendant declined to extend him an offer for tenure.
WIU hires non-tenured assistant professors like Dr. Kouassi on a probationary basis. Each year during their probationary status, WIU's professors are evaluated for the purpose of determining whether the University will retain them for the following academic year. The criteria and method that WIU uses to evaluate these employees is dictated by an agreement between it and the University Professors of Illinois Local 4100. (Western Illinois University and University Professionals of Illinois Local 4100 2010-2015 Agreement (hereafter "WIU/UPI Agreement"), included in the record at Doc. 68-1 at 37-88, Doc. 68-2 at 1-88, and Doc. 68-3 at 1-23). The agreement states that professors are evaluated on the basis of their teaching duties, scholarly activities, and service activities. (WIU/UPI Agreement, Art. 20.4(a)). Each academic department is responsible for developing and describing standards that will be used in evaluating employees' retention, tenure, and promotion. ( Id. at Art. 20.4(b).).
The WIU/UPI Agreement also governs the manner in which probationary employees can apply for promotion from assistant professor to associate professor, and the timeframe in which probationary employees must apply for tenure. Because WIU hired Dr. Kouassi before September 1, 2007, he was permitted to - and did - apply for promotion to Associate Professor in his fifth year of full-time service at WIU. ( See WIU/UIP Agreement, Art. 20.9(b)(1)). Professors apply for tenure during their sixth probationary year. A probationary employee is granted tenure by WIU's Board of Trustees, upon a positive recommendation of the WIU's president. ( Id. at Art. 20.10(a)). Untenured professors who either fail to apply for tenure during their sixth probationary year or who are not granted tenure receive a terminal contract for the following academic year.
By agreement, the criteria for tenure (which, again, are established by the probationary employee's department) are identical to the criteria for promotion to Associate Professor. ( Id. at Art. 20.4(h)). The WIU Chemistry Department requires that a faculty member who applies for promotion to Associate Professor or for tenure "have at least two-peer-reviewed article [sic] describing scholarly work carried out at WIU (on which the faculty member is either the principal author or a major contributing author) published in national/international journal(s)." (Doc. 68 at 17). Although tenure is governed by the same standards as promotion to associate professor, the WIU/UIP agreement also provides that "[t]enure shall not be acquired automatically by length of service or prior promotion." (WIU/UIP Agreement at Art. 20.10(c)).
Candidates for retention, promotion, and tenure are evaluated independently by their Department Chair, Dean, and evaluation committees comprised of faculty. At the department level, candidates are evaluated by a panel known as the Department Personnel Committee (DPC). In the event that Department Chair, DPC, or Dean makes a negative recommendation, two other personnel committees exist: the College Personnel Committee (CPC), which consists of the chairs of all of the DPCs in a particular WIU college, and the University Personnel Committee (UPC), which consists of nine tenured Professors who are elected from the various WIU colleges and other departments at the university. ( See WIU/UIP Agreement at Art. 20.5). The University President reviews portfolios submitted by probationary employees, along with the recommendations from the relevant department chair, dean, and various faculty committees, in making personnel decisions related to retention, promotion, and tenure.
Professors at WIU may also apply for what are known as Professional Achievement Awards, or PAA's. Professors qualify for PAAs by earning points based upon their performance, and successful applicants are awarded salary stipends. Publications submitted in support of a PAA are subject to the same academic standards as publications submitted in support of retention, promotion, or tenure.
I. Kouassi's Evaluations
Dr. Kouassi was evaluated seven times for either retention, promotion, or tenure during his time at WIU: during Probationary Years (PY) one through five, when he applied for promotion to associate ...