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Cho v. Perea

United States District Court, N.D. Illinois, Eastern Division

September 24, 2019

SUMI CHO, Plaintiff,
v.
JENNIFER ROSATO PEREA and DEPAUL UNIVERSITY, Defendants.

          MEMORANDUM OPINION AND ORDER

          John Z. Lee, United States District Judge.

         Plaintiff 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 [22] is granted in part and denied in part.

         Background[1]

         I. Cho’s Employment at DePaul

         Cho, 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.

         As a 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.

         Additionally, 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.

         II. The Dean Search Committee

         In 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 committee. Id.

         Cho 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”)[2]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.” Id.

         A total 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.

         After 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.

         The new 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. Id.

         III. Opposition to Applications for Tenure

         In 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.

         Under 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. ¶ 50.

         In an “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 complaint. Id.

         IV. Removal from Associate Deanship

         On 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 discrimination. Id.

         V. Investigations of Cho

         A.OIDE and Powers Investigations

         In 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[3] 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.

         During 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 Perea. Id.

         As for 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.

         B. Chapter 4 Investigation

         Despite 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.

         The 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.

         Although 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.

         In 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. Id.

         According 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 ...


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