United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee, United States District Judge.
Sumi Cho filed this lawsuit against DePaul University and
Jennifer Rosato Perea pursuant to 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq, bringing claims of discrimination,
retaliation, and breach of contract. Defendants have filed a
motion to dismiss Cho’s complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the following reasons,
the motion  is granted in part and denied in part.
Cho’s Employment at DePaul
who is Asian-American, is a tenured full professor of law at
the DePaul University College of Law (“the Law
School”). Compl. ¶ 1, ECF No. 1. Rosato Perea is
the Dean of the Law School. Id. ¶ 2. While
employed at the Law School, Cho has been actively engaged in
antidiscrimination and diversity efforts, which has at times
involved criticism of the Law School’s leadership.
Id. ¶¶ 8–21. Cho alleges that, as a
result of her participation in these efforts, faculty and
administrators at the Law School and at DePaul have excluded,
ostracized, and ignored her. Id. ¶¶
22–25. In March 2015, Cho filed a charge of
discrimination and retaliation with the United States Equal
Employment Opportunity Commission (“EEOC”).
Id. ¶ 26.
tenured full professor, Cho’s employment is governed by
the DePaul University Faculty Handbook (“the
Handbook”), which creates an employment contract
between Cho and DePaul. Id. ¶ 27. The Handbook
guarantees a professor’s right to academic freedom, and
“[a]ny judgment based on a faculty member’s
ideological and political positions is a violation of”
that freedom. Id. ¶¶ 27–31.
the Handbook sets forth DePaul’s system of
“shared governance.” Id. ¶ 32.
Faculty members at DePaul “advise and otherwise
participate in the oversight of administrators, the
establishment or dissolution of administrative offices, and
major changes to the administrative structure, including the
search for senior administrative positions.”
Id. These responsibilities are largely delegated to
a Faculty Council, which has the ability to form
sub-committees or ad hoc committees to carry out
various duties. Id. ¶ 33. Service on
“high-profile committees” such as those created
to search for deans, is “critical” because it can
raise a professor’s profile within her academic unit,
the university, or the broader academic community.
Id. ¶ 34.
The Dean Search Committee
March 2014, Cho was nominated to participate on the Law
School’s Dean Search Committee. Id. ¶ 35.
The committee was made up of Law School faculty, alumni, and
other stakeholders and tasked with selecting the next Dean of
the Law School. Id. According to Cho, the
committee-selection procedures were “designed to
exclude those faculty who opposed discriminatory
practices” at the Law School. Id. ¶ 36.
Two faculty members, Susan Thrower and Steven Resnicoff (both
of whom are white), were responsible for receiving
nominations and determining which faculty names to forward to
the Acting Provost, who then appointed members to the
states that Thrower and Resnicoff “were given a free
hand to arbitrarily exclude individuals” from the list
they submitted to the Acting Provost. Id. ¶ 37.
No. selection criteria were announced to the faculty prior to
Thrower’s and Resnicoff’s selections, and only
after Cho filed an internal complaint with DePaul’s
Office of Institutional Diversity and Equity
(“OIDE”)did Thrower and Resnicoff
“concoct” criteria for selection. Id.
These criteria included “diversity, ability to work
effectively in a committee setting, past participation in the
well-being of the law school, and good judgment.”
of 22 nominations were submitted to Thrower and Resnicoff.
Id. ¶ 38. They, in turn, forwarded ten
nominations the Acting Provost. Id. This list did
not include Cho. Id. The list was comprised of eight
white faculty members and two black faculty members, who Cho
asserts had “no record of speaking out on issues of
discrimination” at the Law School. Id.
Furthermore, according to Cho, the white faculty members
included several “known neither for their judgment nor
their ability to work effectively in committee
settings.” Id. ¶ 39. This was the second
time Cho had been denied consideration for service on a dean
search committee. Id. ¶ 40.
Cho made her complaint to OIDE, an investigator, Arlette
Johnson, looked into Cho’s claim that she had been
wrongfully excluded from the Dean Search Committee.
Id. ¶ 41. Johnson concluded that
Thrower’s and Resnicoff’s reliance on the
selection criteria was “a pretext for retaliation based
on Professor Cho’s advocacy for diversity and against
discrimination” at the Law School. Id. But
before Johnson could memorialize her findings in a report,
she took administrative leave, and OIDE engaged an outside
investigator to take over. Id. ¶ 42.
investigator, Rachel Yarch, had previously represented DePaul
in a race-discrimination lawsuit where it had been named as a
defendant. Id. Less than two weeks after taking over
the investigation, and without speaking to Johnson or
interviewing any witnesses, Yarch concluded that Thrower and
Resnicoff had not retaliated or discriminated against Cho.
Opposition to Applications for Tenure
January 2017, two professors at the Law School applied for
tenure: Julie Lawton, who is African-American, and Daniel
Morales, who is Latino. Id. ¶ 44. As a tenured
full professor, Cho was tasked with evaluating and voting on
both professors’ applications. Id. Cho had
“serious doubts” about the qualifications of both
professors and voted against their tenure; she also voted
against Lawton’s application for promotion to full
professor. Id. ¶ 46. Cho was not the only one.
Three other faculty members voted against granting Lawton
tenure, and seven opposed her promotion to full professor.
Id. As for Morales, three others voted against
tenure, and a fourth abstained from voting. Id.
¶¶ 46–47. Additionally, during the votes,
other faculty members expressed concerns about the
performance of both applicants. Id. ¶ 48. In
the end, a majority of the faculty voted to grant Lawton and
Morales tenure. Id. ¶ 59.
the Law School’s procedures, after the faculty votes on
a tenure application, it is sent to the University Board of
Promotion and Tenure (“UBPT”), which reviews the
file and forwards it to the Provost. Id. ¶ 50.
The Provost has the authority to overturn the decision of the
UBPT only in extraordinary circumstances. Id.
Because Cho disagreed with the majority of faculty regarding
Lawton and Morales’s candidacies for tenure, she filed
a minority report in opposition to their
applications––a right guaranteed to her by the
Handbook. Id. ¶ 49. In theory, a minority
report could cause the UBPT or the Provost to deny tenure to
a candidate; in practice, however, the position articulated
in a minority report is rarely adopted. Id. ¶
“unprecedented” move, according to Cho, she and a
colleague were prosecuted for misconduct due to their
opposition to Lawton’s and Morales’s tenure
applications. Id. ¶ 51. In response to
Cho’s minority report, Morales filed an OIDE complaint
against her in March 2017. Id. ¶ 52. The
complaint stated that Cho had engaged in “racially
hostile conduct” toward Morales throughout his time at
DePaul, and that Cho’s opposition to his tenure
application was “motivated by his refusal to subscribe
to her views of institutional racism within the academy or
her ostensible views of how junior faculty of color should
behave within the academy.” Id. ¶ 53. An
independent investigator, Nigel Telman, dismissed the
Removal from Associate Deanship
March 31, 2017, Dean Rosato Perea terminated Cho as the
Associate Dean for Non-JD programs, a position she had held
since 2015. Id. ¶¶ 54–55. Rosato
Perea stated that the termination was due to Cho being
“unnecessarily adversarial, disruptive, and
inflexible.” Id. Cho asserts, however, that
other professors who were appointed as associate deans by
Rosato Perea exhibited these same characteristics,
demonstrating that the given reason was a pretext for
Investigations of Cho
and Powers Investigations
April 2017, DePaul hired two teams of attorneys to
investigate ongoing issues at the Law School. Id.
¶ 56. The first was led by William Powers, a former
university president and law school dean. Id. Powers
was tasked with determining whether DePaul should initiate
Chapter 4 procedures against certain faculty at the Law School.
Id. The second team, led by Telman, was tasked with
investigating the March 2017 OIDE complaint made by Morales,
along with separate complaints he and Lawton had made against
another faculty member who had opposed their applications for
tenure. Id. ¶¶ 46, 56.
this time, Cho complained to the Provost about discrimination
at the Law School and provided the Provost and Powers with a
list of witnesses who could support and corroborate her
complaints. Id. ¶ 57. Neither contacted any of
these witnesses. Id. To date, Cho has not been
informed of the results of Powers’s investigation,
because the Provost has not released the contents of
Powers’s report. Id. ¶ 58. The Provost,
however, has shared the contents of the report with Rosato
the OIDE investigation, it “cleared Professor Cho of
racial discrimination and harassment charges in connection
with her opposition to Professor Morales’s application
for tenure.” Id.
Chapter 4 Investigation
the fact that the OIDE investigation had cleared Cho of
wrongdoing, Rosato Perea announced on August 31,
2017––two months after the conclusion of the OIDE
investigation––that she was opening a Chapter 4
investigation into “allegations of bullying, discord[,
] and toxicity” on the part of Cho. Id. ¶
59. Rosato Perea stated that this investigation was based on
numerous complaints she had received during the 2017
academic-year tenure process. Id.
investigation concluded on November 16, 2017, when Rosato
Perea issued a Statement of Charges (“the
Charge”), concluding that Cho had engaged in
“misconduct” in violation of the Handbook by
engaging in a “pattern of bullying” rising to the
level of “extreme intimidation and aggression.”
Id. ¶ 60. The Charge alleges that Cho sought to
destroy Lawton’s and Morales’s careers by
opposing their tenure applications because they did not
subscribe to her views on race or institutional racism at the
Law School. Id. ¶ 61. According to Cho, the
conduct alleged in the Charge does not amount to a violation
of the Handbook. Id. ¶ 62. Additionally, to the
extent Rosato Perea felt that Cho had engaged in conduct
prohibited by the Handbook, she had an obligation to counsel
Cho “before allowing the ‘pattern’ to grow
to a point where Chapter 4 proceedings were justified.”
Id. ¶ 63. Moreover, Cho disputes that she ever
engaged in such conduct and states that her personnel file
contained no documentation of such conduct at the time the
Charge was issued. Id. ¶¶ 64–65.
Rosato Perea claims to have interviewed twenty witnesses and
reviewed numerous documents over the course of her
investigation, she refused to interview Cho and did not
request documents from her. Id. ¶ 66. What is
more, the Charge indicates that Rosato Perea was a witness to
Cho’s alleged wrongdoing, thereby positioning Rosato
Perea as both witness and finder of fact. Id. ¶
67. According to Cho, this demonstrates that the outcome of
the investigation was “predetermined.”
Id. ¶ 68.
addition, much of the conduct that forms the basis of the
Charge occurred before the current Handbook was adopted in
June 2016. Id. ¶ 69. The prior version of the
Handbook did not define misconduct to include “a
pattern of extreme intimidation and aggression toward other
members of the university community.” Id.
Therefore, Cho states, the Charge “attempts to
retroactively change the terms” of her employment.
to Cho, other faculty members who have engaged in similar
behavior to that described in the Charge have not been
subject to Chapter 4 procedures. Id. ¶¶
71–72, 80. Specifically, she states, other faculty have
“criticized and attempted to terminate faculty of color
for perceived and fabricated deficiencies, ” but have
not faced disciplinary action. Id. ¶ 71.
Additionally, “white ...