Abuelyaman v. Illinois State University , 667 F.3d 800 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2926
E LTAYEB A BUELYAMAN,
Plaintiff-Appellant,
v.
ILLINOIS S TATE U NIVERSITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-CV-01151— Michael M. Mihm, Judge.
A RGUED S EPTEMBER 29, 2011—D ECIDED D ECEMBER 13, 2011
Before R IPPLE, M ANION, and S YKES, Circuit Judges.
M ANION, Circuit Judge. Eltayeb Abuelyaman, an Arab
Muslim, served as an associate professor at Illinois State
University’s School of Information Technology from 2001
to 2006. Abuelyaman ’s perform an ce record
was consistently sub-par, and he frequently sparred
with policy decisions made by his supervisor. In
March 2006, Abuelyaman was informed that his
contract would not be renewed for the 2007-2008
school year. Abuelyaman filed suit, alleging that Illinois
2 No. 10-2926
State refused to renew his contract based on his
race, national origin, and religion, and in retaliation for
several claimed instances of complaining about discrimina-
tion, all in violation of Title VII. The district court granted
Illinois State summary judgment on Abuelyaman’s dis-
crimination claim and one of his retaliation theories, and
then during trial granted Illinois State judgment as a
matter of law on another one of his retaliation theories.
After a jury found for Illinois State on Abuelyaman’s one
remaining retaliation theory, he appealed. Because
we agree with the district court at every turn, we affirm.
I. Background
We begin in the murky world of academic ranking
and tenure systems. Illinois State has a three-tiered profes-
sor ranking system which, listed from the lowest rank to
highest, is composed of assistant professors, associate
professors, and full professors. Not surprisingly, Illinois
State imposes increased performance standards as a
professor ascends in rank. For example, an assistant
professor, who is typically new to the academic arena, is
not expected to have achieved the “regionally and nation-
ally recognized accomplishments” (such as grant awards
and published works) of a more experienced associate
professor. Assistant professors are usually promoted to
associate professors only after their fourth year of service,
and even then such a promotion is ordinarily contingent on
a recommendation for tenure.
In addition to its ranking system, Illinois State faculty
members are classified as tenured, probationary tenure-
No. 10-2926 3
track, or nontenure-track. A tenure-track professor must
serve a six-year probationary period during which
the professor is granted a series of one-year contracts.
Employment beyond one year is not guaranteed;
a professor’s contract renewal is contingent on a recom-
mendation from the school in which the professor teaches.
Eventually, a professor’s school must decide whether to
grant a professor tenure; this decision must be made at
least one year before that professor’s probationary period
expires. To be considered for tenure, a faculty member
must hold the rank of either associate professor or full
professor. Moreover, tenure is “not automatic”; the profes-
sor must maintain a level of “high quality professional
performance” and demonstrate a compatibility with
Illinois State’s long-term goals.
Such competitive standards for both ranking and tenure
call for a rigorous evaluation process. Accordingly, Illinois
State maintains a comprehensive policy that requires
individual schools and departments to evaluate professors
in the three categories of teaching, scholarly productivity,
and service. Individual schools and departments are given
wide latitude, however, to adapt Illinois State’s policy “to
their own unique situations.” Schools set up committees to
complete periodic faculty evaluations as well as to make
recommendations on merit-based raises, tenure, promo-
tion, and reappointment.
During Abuelyaman’s employment with the Illinois State
School of Information Technology (“IT School”), the IT
School’s Faculty Status Committee (“Status Committee”)
conducted an annual review of each of the IT School’s
professors and distributed evaluations every January. The
4 No. 10-2926
Status Committee was composed of the IT School director
and three peer-elected professors who were elected to two-
year terms. The Status Committee scored professors in the
three categories mentioned above according to the follow-
ing weighted formula: teaching comprised 50% of a profes-
sor’s overall performance score; scholarly productivity
comprised 40%; and service comprised the remaining 10%.
Although this scoring system was the same for every
professor regardless of rank or tenure status, the Status
Committee took into account the different performance
standards associated with a professor’s rank when assign-
ing that professor a score.
Abuelyaman, a Muslim of Sudanese, Yemeni, and Saudi
Arabian descent, was hired by the IT School in Fall 2001 as
a probationary, tenure-track associate professor. He was
the only nontenured associate professor in the IT School.
Abuelyaman received consistently low marks on his
annual performance reviews. His first evaluation in
January 2002 noted that, out of all his colleagues,
he received the worst mark in service, tied for worst
in teaching, and was ranked 11th of 15 in scholarly produc-
tivity. In November 2002 Abuelyaman’s department chair
expressed concern in a letter over “the quality and thor-
oughness of some of [Abuelyaman’s] work.” Despite this
warning, Abuelyaman’s next three evaluations were
similarly poor. The Status Committee’s January 2005
evaluation noted that Abuelyaman’s student evaluations
were “weak,” his publication record left the Status Com-
mittee with “unanswered questions,” and he needed to
become more involved in service. Though his performance
was “satisfactory” overall, the Status Committee told him
No. 10-2926 5
that it was not enough to ensure tenure or promotion.
Abuelyaman improved slightly in the next year; his
January 2006 evaluation ranked him as “Meritorious” in
the areas of both teaching and scholarly productivity and
“Effective” in service.1 Again, however, the Status Commit-
tee was left unimpressed by Abuelyaman’s overall perfor-
mance. It characterized Abuelyaman’s scholarly productiv-
ity as ”below the average for [IT School] faculty.” And
although his teaching was “slightly above average,”
Abuelyaman was nevertheless admonished to “work
on im proving [his] teaching activities still
further, . . . including the currency of [his] materials.”
Finally, the Status Committee characterized his service as
“low compared to other [IT School] faculty,” and encour-
aged him “as [it] did last year, . . . to get more actively
involved in this area.”
Despite receiving these consistently low evaluations,
Abuelyaman argues that he, along with others, was
the victim of discrimination within the IT School.
The relevant instances of alleged discriminatory conduct
involve IT School director Dr. Terry Dennis, who
was appointed to that position in Fall 2004. At the time Dr.
1
Despite these misleading labels, Abuelyaman’s January 2006
evaluation was still sub-par. Indeed, the ranking classifications
from which the Status Committee had to choose in assessing a
professor’s teaching, scholarly productivity, and service were,
in ascending order, “Acceptable,” “Effective,” “Meritorious,”
“Excellent,” or “Outstanding.” Thus, Abuelyaman’s marks were
the functional equivalent of two average scores and one below-
average score.
6 No. 10-2926
Dennis was appointed, the IT School had the worst teach-
ing evaluations in the entire College of Applied Science
and Technology. To remedy this shortcoming, soon after he
was appointed IT School director Dr. Dennis changed the
faculty evaluation process by instructing the Status Com-
mittee to accord greater weight to student evaluations.
When Dr. Dennis announced this change in a faculty
meeting, Abuelyaman immediately complained that
foreign-born professors would be greatly disadvan-
taged because students were biased against them. Several
other professors, including Drs. Eta, Zeta, and Delta,2
voiced their agreement with Abuelyaman. Abuelyaman
complained to Dr. Dennis at least two more times, once in
a Spring 2005 faculty meeting and once in a private conver-
sation. Ultimately, these complaints fell on deaf ears and
student evaluations were accorded more weight by the
Status Committee when it conducted annual evaluations.
Additionally, Abuelyaman participated in the investiga-
tion of two complaints filed with the Diversity Office. One
complaint was filed by Dr. Zeta on January 17, 2006, after
Dr. Dennis had informed Dr. Zeta approximately two
months earlier that the Status Committee had voted not to
reappoint him for the next school year. In his complaint,
Dr. Zeta alleged that the Status Committee had discrimi-
nated against him in part because he twice supported
2
In an unopposed motion dated September 26, 2011, Illinois
State requested that all documents that had been placed under
seal by the district court remain under seal on appeal. We
granted that motion. The parties subsequently redacted their
briefs, using pseudonyms for certain faculty members.
No. 10-2926 7
Abuelyaman’s complaints during faculty meetings that
foreign-born professors were not fairly evaluated by
students. Abuelyaman backed Dr. Zeta, and even voiced
his concerns to Illinois State president Dr. Bowman that Dr.
Zeta was the victim of discrimination.3 Abuelyaman also
participated in an interview on February 21, 2006, as part
of the Diversity Office’s investigation into Dr. Zeta’s
complaint. During that interview, Abuelyaman confirmed
Dr. Zeta’s support for Abuelyaman’s complaints about
student evaluations, elaborated on why he believed those
evaluations were unfair to foreign-born professors,
and described an overarching “culture of unfairness” that
plagued the IT School. The Diversity Office
also interviewed Dr. Dennis (who, as IT School director,
was a member of the Status Committee that had voted not
to reappoint Dr. Zeta) and two other IT School professors.
Ultimately, the Diversity Office found that Dr. Zeta was
terminated based on a failure to improve his teaching
performance and not because of his race or national origin.
3
Abuelyaman initially contended that he complained to two
individuals about his belief that Dr. Zeta was discriminated
against: Dr. Bowman and Dean Lamberson. But Abuelyaman
was apparently fuzzy on certain details, including the precise
name of the dean to whom he complained. As the district court
observed, there was no “Dean Lamberson” at Illinois State, and
even two weeks before trial Abuelyaman could not name the
dean to whom he had allegedly complained. As a result,
Abuelyaman omits any mention of Dean Lamberson from his
brief; thus, we will disregard him in this opinion.
8 No. 10-2926
The other complaint was filed by Dr. Delta in Fall
2005 and cited undue influence by Dr. Dennis in an
IT School search committee’s (“Search Committee”) efforts
to locate a new telecommunications professor for the IT
School. Dr. Delta complained that after the Search Commit-
tee had chosen a professor to recommend for appointment,
Dr. Dennis asserted his authority as director of the IT
School and pushed Search Committee members to recom-
mend a different candidate. Abuelyaman, who was a
member of the Search Committee, not only participated in
the Diversity Office’s subsequent investigation, but also
complained to Dr. Dennis in person about the latter’s
improper influence over relatively junior Search Commit-
tee members.
Things came to a head on March 20, 2006. That
day, Abuelyaman told Dr. Dennis that he had participated
in the Diversity Office’s investigation of Dr. Delta’s
complaint concerning Dr. Dennis’s involvement with the
Search Committee.4 Although Abuelyaman emphasized
that he had not been the one to file the complaint itself, Dr.
Dennis apparently became visibly angry. Within ten
minutes of this conversation, Dr. Dennis informed
Abuelyaman that the Status Committee had voted not to
reappoint him to his position as an associate professor past
May 2007. Abuelyaman also received a letter dated March
4
In his brief, Dr. Dennis admits that “[s]omeone from the
[Diversity] Office talked to [him] about a complaint concerning
his participation in the Search Committee, ‘likely’ before March
16”; however, he did not know who had filed the complaint
or who had participated in the subsequent investigation.
No. 10-2926 9
16, 2006, that memorialized his non-reappointment.
Abuelyaman finished the 2006 school year and
even returned the following fall, but he quit after two
weeks and accepted a position at Prince Sultan University
in Saudi Arabia.
In September 2006, Abuelyaman filed a complaint with
the Equal Employment Opportunity Commission, alleging
that he had not been reappointed because Illinois State had
discriminated against him on the basis of his race, religion,
and national origin. After receiving a right-to-sue letter,
Abuelyaman filed suit in the U.S. District Court for the
Central District of Illinois. Abuelyaman alleged that Illinois
State had violated Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000 et seq., by discriminating against him and
by retaliating against him because: (1) he had complained
that using student evaluations to assess professors was
unfair to foreign-born faculty members; (2) he had com-
plained to Dr. Bowman that Dr. Zeta was the victim of
discrimination; and (3) he had participated in Dr. Delta’s
complaint investigation. Illinois State filed a motion for
summary judgment, and the district court granted that
motion on Abuelyaman’s discrimination claim and one of
his retaliation theories, namely, his complaint to Dr.
Bowman that Dr. Zeta was the victim of discrimination.
In opposing summary judgment, Abuelyaman also at-
tempted to present a fourth scenario to support
his retaliation claim; specifically, he argued that the Status
Committee did not renew his contract because he had
participated in the Diversity Office’s investigation of Dr.
Zeta’s complaint against the Status Committee. The district
court summarily rejected this new retaliation theory
10 No. 10-2926
because Abuelyaman did not disclose this theory during
discovery and because there was no evidence that the
Status Committee in fact knew that Abuelyaman had
participated in that investigation.
As the case proceeded to trial, Illinois State filed two
motions in limine seeking to preclude Abuelyaman
from introducing certain pieces of evidence at trial.
The court granted the motions in part, barring, among
other things, several IT School professors’ salary
and performance data, the Diversity Office’s investigation
report on Dr. Zeta’s discrimination complaint, and several
documents relating to Dr. Delta’s complaint about Dr.
Dennis’s involvement with the Search Committee. The
court noted, however, that Abuelyaman would be allowed
to question Dr. Dennis and Status Committee members
about whether they knew of his participation in the
Diversity Office’s investigation into Dr. Delta’s complaint
at the time they made their decision not to reappoint
Abuelyaman. Finally, two weeks before trial the court held
a telephone conference to assess again whether
Abuelyaman had any evidence that the Status Committee
knew of Abuelyaman’s complaint to Dr. Bowman concern-
ing alleged discrimination against Dr. Zeta. Finding
that Abuelyaman did not have any such evidence, the
district court precluded any evidence concerning Dr. Zeta’s
discrimination claim or Abuelyaman’s participation in the
resulting Diversity Office investigation.
At this point, the case was ready for trial on the two
surviving retaliation theories: (1) Abuelyaman’s argument
that Illinois State had retaliated against him for his partici-
No. 10-2926 11
pation in Dr. Delta’s complaint investigation; and (2)
Abuelyaman’s argument that Illinois State had retaliated
against him for complaining that giving student evalua-
tions greater weight prejudiced foreign-born faculty
members. After Abuelyaman had presented all of his
evidence at trial, Illinois State moved for a judgment as a
matter of law on both theories. The district court granted
the motion on Abuelyaman’s theory that he was retaliated
against because he had participated in Dr. Delta’s com-
plaint investigation because Abuelyaman had failed to
establish that he had engaged in a statutorily protected
activity. But the court denied the motion on Abuelyaman’s
student-evaluation theory, which was then considered by
the jury. The jury returned a verdict in favor of Illinois
State. Abuelyaman appeals.
II. Notice of Appeal
We briefly discuss Illinois State’s significant contention
that the district court erred in granting Abuelyaman an
extension of time to file a notice of appeal. On the eve
of oral argument, Illinois State filed supplemental briefing
in which it insisted that the district court erred in granting
Abuelyaman’s motion to extend the time to file a notice of
appeal. Specifically, Illinois State argued that
Abuelyaman’s explanation for his late filing did not satisfy
Federal Rule of Appellate Procedure 4(a)(5)(A)’s “excus-
able neglect” standard as construed by this court in
Prizevoits v. Indiana Bell Telephone Co., 76 F.3d 132, 133-34
(7th Cir. 1996). We review a district court’s decision to
grant a motion to extend time to file a notice of appeal for
12 No. 10-2926
abuse of discretion. United States v. Brown, 133 F.3d 993, 996
(7th Cir. 1998).
Federal Rule of Appellate Procedure 4(a) requires a party
to file a notice of appeal “within 30 days after the judgment
or order appealed from is entered.” Fed. R. App. P.
4(a)(1)(A). A party may move for an extension of time to
file a notice of appeal provided (1) such a motion is made
within 30 days after the original deadline has passed, and
(2) if filed within 30 days after the prescribed time the
moving party demonstrates “excusable neglect or good
cause” for failing to file the notice on time. Fed. R. App. P.
4(a)(5). We are concerned here only with the district court’s
holding that Abuelyaman’s attorney demonstrated the
requisite excusable neglect to allow for an extension of
time.
Illinois State is correct to point out that “excusable
neglect” is far from a toothless standard. Indeed, “[a]n
unaccountable lapse is not excusable neglect. . . . The term
‘excusable neglect’ . . . refers to the missing of a deadline as
a result of such things as misrepresentations by judicial
officers, lost mail, and plausible misinterpretations of
ambiguous rules.” Prizevoits, 76 F.3d at 133-34 (citing
Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232-34
(7th Cir. 1990); Redfield v. Cont’l Cas. Corp., 818 F.2d 596, 602
(7th Cir. 1987)). But the “excusable neglect” standard is not
a merciless one, either. At bottom, “[t]he test as to what
constitutes excusable neglect is an ‘equitable one, taking
account of all relevant circumstances surrounding the
party’s omission.’ ” Brown, 133 F.3d at 996 (quoting Pioneer
Inv. Servs. Co. v. Brunswick Assocs., Inc., 507 U.S. 380,
No. 10-2926 13
395 (1993)). Thus, “the standard is a balancing test, mean-
ing that a delay might be excused even where the reasons
for the delay are not particularly compelling.” Id. at 997.
Analysis of the circumstances surrounding a motion for an
extension of time to file an appeal involves the consider-
ation of several factors, the most important of which are
the degree to which the appellee is prejudiced and the
good faith of the appellant. Id. at 996 (citing Pioneer, 507
U.S. at 398).
In this case, Abuelyaman’s attorney purported to file and
serve the notice of appeal electronically one day before the
filing deadline. Unfortunately, something went awry and
none of the documents was properly filed. Counsel averred
that not only had she attempted to file and serve the notice
electronically, but also that she had provided the clerk’s
office with her credit card information to process the filing
fee payment and that she mailed a copy of the notice
of appeal to her co-counsel. Six days after the filing dead-
line, counsel realized that the documents had not been
filed and promptly filed a motion to extend the time for
filing the notice of appeal. Given these facts, the district
court did not abuse its discretion in finding that counsel
acted in good faith when she attempted to file the notice of
appeal. True, counsel’s suspicions should have been
aroused when she failed to receive a standard electronic
confirmation; however, it seems quite clear that counsel
believed that she had fully complied with the filing
requirements, especially when she concomitantly at-
tempted to pay the filing fee. Moreover, Illinois State can
hardly claim prejudice when the motion to extend time
was filed only six days after the deadline and when it did
14 No. 10-2926
not even bother to respond to that motion. Under these
circumstances, there was no abuse of discretion and this
case is properly before us.
III. Title VII Claims
We turn then to the substance of Abuelyaman’s appeal.
On appeal, Abuelyaman argues that the district court erred
in granting Illinois State summary judgment on
his discrimination claim and one of his theories of retalia-
tion. He also challenges the court’s grant of judgment as a
matter of law on his second retaliation theory.
We review the district court’s granting of summary
judgment de novo. Int’l Union v. ZF Boge Elastmetall
LLC, 649 F.3d 641, 646 (7th Cir. 2011). In considering
the district court’s granting of summary judgment,
we construe all facts and draw all inferences in favor of the
nonmoving party, id., and will affirm 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). Likewise, we review de novo the district
court’s granting of Illinois State’s Rule 50 motion for
judgment as a matter of law at trial on Abuelyaman’s
theory that he was retaliated against because he had
participated in Dr. Delta’s complaint investigation. Waters
v. City of Chicago, 580 F.3d 575, 580 (7th Cir. 2009) (citation
omitted). “We will uphold a trial court’s grant of judgment
as a matter of law only if, after viewing all the evidence,
no reasonable jury could have found for [Abuelyaman] on
each essential element of [his] claim.” Harper v. Albert, 400
F.3d 1052, 1061 (7th Cir. 2005) (citation omitted).
No. 10-2926 15
Title VII prohibits discrimination in employment on the
basis of race, national origin, and religion, among other
categories. See 42 U.S.C. § 2000e-2(a); Kyles v. J.K. Guardian
Sec. Servs., Inc., 222 F.3d 289, 303 (7th Cir. 2000). It also
prohibits retaliation against those who oppose discrimina-
tory conduct. 42 U.S.C. § 2000e-3(a); Fine v. Ryan Int’l
Airlines, 305 F.3d 746, 751 (7th Cir. 2002). Both discrimina-
tion and retaliation claims may be established using either
the “direct” or “indirect” methods of proof. See Atanus v.
Perry, 520 F.3d 662, 671, 677 (7th Cir. 2008). Here, the
parties proceed under the direct method, and we will limit
our analysis to that method.
The direct method, as we have noted before, is mislead-
ing because it “tends to imply that an employee only may
proceed . . . with ‘direct evidence.’ ” Id. at 671
(citing Sylvester v. SOS Children’s Villages Illinois, Inc.,
453 F.3d 900, 902-03 (7th Cir. 2006)). The standard
is broader than that. Although the direct method of proof
may certainly include direct evidence that comes in the
form of “near-admissions by the employer that its deci-
sions were based on a proscribed criterion,” such proof
“also includes circumstantial evidence [that] suggests
discrimination albeit through a longer chain of inferences.”
Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir.
2006) (citations omitted). Thus, “[t]he focus of the direct
method is not whether the evidence offered is ‘direct’ or
‘circumstantial’ but rather whether the evidence ‘points
directly’ to a discriminatory reason for an employer’s
action.” Atanus, 520 F.3d at 671 (quoting Burks v. Wis. Dep’t
of Transp., 464 F.3d 744, 750 n.3 (7th Cir. 2006)).
16 No. 10-2926
A. Discrimination Claim
We first address Abuelyaman’s contention that the
district court erred in granting summary judgment on his
discrimination claim. Lacking direct evidence, Abuelyaman
attempted to prove his discrimination claim by weaving
together a “convincing mosaic” of circumstantial evidence
that would allow a reasonable fact finder to infer that his
contract was not renewed because of his race, national
origin, or religion. Troupe v. May Dep’t Stores Co., 20 F.3d
734, 737 (7th Cir. 1994). We have described three categories
of circumstantial evidence that may be used to prove
intentional discrimination: (1) “suspicious timing” of the
adverse action against the plaintiff, “ambiguous state-
ments” made by the employer, an employer’s conduct
toward other employees in the same protected group as
the plaintiff, and “other bits and pieces” of evidence “from
which an inference of discriminatory intent might be
drawn”; (2) evidence that employees who are outside the
plaintiff’s protected group but who are otherwise “simi-
larly situated” to the plaintiff “received systematically
better treatment”; and (3) evidence that a qualified plaintiff
was replaced by or was passed over for a position in favor
of an individual who was not in the plaintiff’s protected
group and that the employer’s stated reason for
not choosing the plaintiff was merely pretextual.
Rudin v. Lincoln Land Cmty. College, 420 F.3d 712, 720-
21 (7th Cir. 2005) (citation omitted).
Abuelyaman’s claim on appeal that he presented suffi-
cient direct evidence of discrimination focuses on the first
two categories listed above. Specifically, he argues that the
No. 10-2926 17
district court erred in discounting at summary judgment,
and refusing to admit at trial, comparative evidence of
other IT School professors’ performance records and salary
data, witness accounts alleging discriminatory treatment of
other professors, and other evidence that could lead a
rational fact finder to conclude that a discriminatory
atmosphere existed in the IT School.5
1. Similarly Situated
In an attempt to create a convincing mosaic of circum-
stantial evidence to support his discrimination claim,
Abuelyaman first contends that similarly situated profes-
5
Abuelyaman also argues in a conclusory fashion that the
comparative evidence rejected by the district court was relevant
not only to his discrimination claim (which was rejected at
summary judgment), but also to the causal connection element
of his retaliation claim at trial. This is incorrect on its face. As
outlined below, a retaliation claim requires (1) that the plaintiff
engage in a protected activity, (2) that the plaintiff incur some
adverse employment action, and (3) a causal connection between
the two. Jones v. Res-Care, Inc., 613 F.3d 665, 671 (7th Cir. 2010)
(citation omitted). None of the evidence recounted in this section
involves a protected activity, which requires lodging some form
of complaint alleging discriminatory conduct on the part of the
employer, see Casna v. City of Loves Park, 574 F.3d 420, 427 (7th
Cir. 2009), and thus the district court did not abuse its discretion
by excluding such evidence from trial. Because we need say
nothing further about this evidence as it applies to
Abuelyaman’s retaliation claims, we limit our discussion to his
discrimination claim only.
18 No. 10-2926
sors outside his protected group were treated better than
he was, and thus that the district court should have
considered evidence of those professors’ performance
records. At the outset, we acknowledge that our similarly
situated analysis “should not be applied mechanically or
inflexibly.” Hull v. Stoughton Trailers, LLC, 445 F.3d 949, 952
(7th Cir. 2006). Yet Abuelyaman still must demonstrate that
his purported comparators are “directly comparable to
[him] in all material respects.” Patterson v. Avery Dennison
Corp., 281 F.3d 676, 680 (7th Cir. 2002) (citations omitted).
Although the specific factors we consider in determining
the comparability of employees will vary on a case-by-case
basis, factors that we have found especially helpful include
whether the employees “(i) held the same job description,
(ii) were subject to the same standards, (iii) were subordi-
nate to the same supervisor, and (iv) had comparable
experience, education, and other qualifications—provided
the employer considered these latter factors in making the
personnel decision.” Ajayi v. Aramark Bus. Servs., Inc.,
336 F.3d 520, 532 (7th Cir. 2003) (citing Patterson, 281 F.3d
at 680).
Abuelyaman argues that, in performing the similarly
situated analysis, we should disregard the titular differ-
ences between assistant, associate, and full professors,
as well as the differences between tenured and non-
tenured professors. Indeed, Abuelyaman contends
that because Illinois State uses the same criteria
for evaluating all professors, and a single supervisory
entity—the Status Committee—performs evaluations for
every professor, the foregoing distinctions do not matter.
But that argument is meritless. The Illinois State employ-
No. 10-2926 19
ment policy handbook recognizes that higher-ranking
professors (e.g., associate professors versus assistant
professors) should perform at higher levels than lower-
ranking professors. The Status Committee apparently took
these common-sense distinctions into account when
evaluating professors of different ranks, which was a
discretionary function that it was accorded by Illinois
State’s decentralized evaluation process. Thus, despite the
use of uniform evaluation criteria, distinctions between
ranking levels matter significantly because those distinc-
tions show that professors of different ranks are not
evaluated under the same standards, and that such profes-
sors most likely do not have comparable experience,
education, and other qualifications. Moreover, tenured
faculty enjoy significantly greater “[f]reedom and economic
security” than their nontenured counterparts. Thus, as we
have stated before, tenured professors are simply not
subject to the same stringent standards as nontenured
professors and therefore cannot serve as comparators. See
Keri v. Bd. of Trustees, 458 F.3d 620, 644-45 (7th Cir. 2006).
With these crucial distinctions in mind, we reiterate that
Abuelyaman was the only nontenured associate professor
in the IT School during his six-year period of employment.
We believe that the district court could have disposed of
the similarly situated issue based on this fact alone. Indeed,
as the court aptly stated, “[i]f it were as Abuelyaman
suggests, it would be pointless to have differing ranks and
tenure.”
But the district court went further, comparing Illinois
State’s treatment of nontenured professors of different
20 No. 10-2926
ranks who, like Abuelyaman, received poor performance
evaluations. The court found that Abuelyaman could
not demonstrate that he was treated differently than such
professors. We agree with this conclusion. It is undisputed
that Abuelyaman consistently received below-average to
average marks on his evaluations. Yet three nontenured
assistant professors—Drs. Xi, Zeta, and Iota—who were
given similarly poor performance evaluations during the
same time period as Abuelyaman were likewise not
reappointed. Another assistant professor, Dr. Theta,
received a poor performance evaluation in January 2005.
Dr. Theta’s evaluation was poor enough to warrant an
explicit warning from Dr. Dennis that if he did not improve
his teaching skills, he would not be reappointed the
following year. Dr. Theta’s teaching apparently did
improve—dramatically—by 2006 as evidenced by his
creation of a new series of courses and his securing a grant
for Illinois State. Abuelyaman showed no such improve-
ment, and (perhaps predictably) was not reappointed.
Abuelyaman thus failed to demonstrate that he was treated
differently from those professors outside his protected
class who were similarly situated to him with respect to
performance. Accordingly, there is no direct evidence
that Abuelyaman was treated differently than similarly
situated individuals outside his protected class.
2. Other Circumstantial Evidence
Abuelyaman next contends that there are “ambiguous
statements” attributable to Illinois State and other “bits
and pieces” of circumstantial evidence “from which an
No. 10-2926 21
inference of discriminatory intent might be drawn.” Rudin,
420 F.3d at 720-21. Specifically, Abuelyaman argues that
the following is sufficient circumstantial evidence to
preclude summary judgment: Dr. Nu’s affidavit in which
he stated that members of the IT School—specifically Dr.
Beta, a member of the 2006 Status Committee—were biased
against Middle Eastern males; Dr. Beta’s alleged discrimi-
natory evaluation of a Middle Eastern applicant; Dr.
Gamma’s expression of frustration with a Middle Eastern
professor’s (not Abuelyaman) inability to attend meetings
on Muslim days of worship; the alleged discriminatory
manner in which the IT School evaluated Abuelyaman’s
teaching skills; and the non-renewal of Abuelyaman’s
contract despite an improved performance evaluation.
We first address Dr. Nu’s affidavit. This piece
of evidence is largely bereft of specific allegations
of discrimination; indeed, much of Dr. Nu’s affidavit
is spent recounting other professors’ wholly conclusory
beliefs that they had been discriminated against. But “[i]t is
well settled that conclusory allegations and self-serving
affidavits, without support in the record, do not create a
triable issue of fact.” Hall v. Bodine Elec. Co., 276 F.3d 345,
354 (7th Cir. 2002) (citation omitted). Therefore, the
conclusory attestations are insufficient to create an infer-
ence of discrimination.
There is, though, one marginally specific allegation
of discriminatory conduct identified in Dr. Nu’s affida-
vit—Dr. Nu’s contention that “Dr. [Beta] sometimes
accentuated perceived weaknesses of [foreign-born faculty
of color whom] she did not prefer and accentuated the
22 No. 10-2926
perceived strengths of those she liked.” This allegation is
supported by Dr. Beta’s evaluation of a Muslim, foreign-
born faculty candidate, in which Dr. Beta noted that the
candidate was difficult to hear and understand. But Dr.
Beta apparently qualified that evaluation by stating that
the faculty candidate could likely remedy any communica-
tion deficiency by speaking up in the classroom. At most,
though, Dr. Beta’s remark counts as an “ambiguous
statement,” but even then Abuelyaman still bears the
burden of showing that such evidence “point[s] directly to
a discriminatory reason for the employer’s action.” Adams
v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003).
It would take a Herculean leap in logic to construe Dr.
Beta’s benign remark about communication—immediately
tempered by an acknowledgment that Dr. Beta’s concerns
might be easily assuaged once the candidate spoke up in
the classroom—as containing some sort of racial animus.
Absent any other specific allegations, which neither Dr. Nu
nor Abuelyaman provide, this evidence cannot create a
triable issue of fact on Abuelyaman’s discrimination claim.
Next, Abuelyaman contends that Dr. Gamma’s frustra-
tion with a Middle Eastern professor’s (Dr. Delta) inability
to attend meetings on Muslim days of worship is evidence
of discriminatory animus. But in making this argument,
Abuelyaman reads Dr. Gamma’s statement out of context.
What Dr. Gamma averred, in full, is that
Dr. Delta was unavailable nearly every Friday and
Monday, since he traveled to see his family in Kansas
City, Missouri. In addition, I was directed that I could
not organize meetings on Fridays in recognition of Dr.
No. 10-2926 23
Delta’s prayer day. Dr. Delta’s consistent absences
made scheduling meetings very difficult and often
frustrating.
Taken as a whole there is nothing overtly discriminatory
about this statement. Dr. Gamma’s reflection on Dr. Delta’s
unavailability on Muslim prayer days is merely one part of
an overarching concern about Dr. Delta’s limited availabil-
ity. This evidence thus does not create a genuine issue of
material fact.
The last two pieces of evidence relate to Abuelyaman’s
annual evaluations: namely, the alleged discriminatory
manner in which the IT School evaluated him, and the non-
renewal of Abuelyaman’s contract despite an improved
performance evaluation. Neither piece of evidence, though,
is sufficient to create a reasonable inference of discrimina-
tion. First, Abuelyaman’s complaint about using student
assessments in professors’ evaluations does not show a
discriminatory animus because every professor in the IT
School was subjected to the same evaluation requirements,
and at least one foreign-born faculty member of color
performed well in the student assessment area.
Second, although Abuelyaman was fired despite his 2006
performance evaluation that marked a slight improvement
over previous years, his previous five years of performance
reviews were well below average. We have consistently
held that an employee “ ’may create a triable issue of fact
by specifically refuting facts that allegedly support the
employer’s claim of performance deficiencies.’ ” Burks, 464
F.3d at 752 n.6 (quoting Dey v. Colt Const. & Dev. Co., 28
F.3d 1446, 1460 (7th Cir. 1994)). Merely citing a marginal
24 No. 10-2926
improvement on a less-than-mediocre record is not enough
to create a genuine issue of material fact—particularly
when, as we noted above, professors with similarly poor
records were also terminated. Thus, this evidence also does
not create a genuine issue of material fact on Abuelyaman’s
discrimination claim. Because Abuelyaman is unable to
produce any evidence that would create a triable issue of
fact, the district court correctly granted summary judgment
on his discrimination claim.
B. Retaliation Claim
We now turn to Abuelyaman’s retaliation
claim. Abuelyaman also sought to prove retaliation under
the direct method, again relying solely on circumstantial
evidence. To establish retaliation under the direct method,
Abuelyaman was required to show “(1) that [he] engaged
in a statutorily protected activity, (2) that [he] suffered an
adverse action taken by [his] employer, and (3) a causal
connection between the two.” Jones, 613 F.3d at 671 (7th
Cir. 2010) (citing Andonissamy v. Hewlett-Packard Co., 547
F.3d 841, 850 (7th Cir. 2008)). Here, the parties dispute only
whether Abuelyaman engaged in protected activity and
whether he has established a sufficient causal nexus
between that activity and the adverse employment action
he suffered; the parties agree that the adverse employment
requirement was satisfied by the non-renewal of
Abuelyaman’s contract.
As we noted earlier, Abuelyaman advanced three
arguments in support of his retaliation claim: specifically,
that Illinois State did not reappoint him because: (1) he had
No. 10-2926 25
complained that using student evaluations to assess
professors was unfair to foreign-born faculty members; (2)
he had complained to Dr. Bowman that Dr. Zeta was the
victim of discrimination; and (3) he had participated in Dr.
Delta’s complaint investigation. On appeal, Abuelyaman
challenges the district court’s rulings on (2) and (3) only.
We address each argument below.
1. Dr. Zeta Complaint
On appeal, Abuelyaman contends that Illinois State
retaliated against him because of his participation in
the Diversity Office’s investigation of Dr. Zeta’s discrimi-
nation complaint. The district court granted Illinois
State summary judgment on this theory of retaliation
because Abuelyaman did not present it earlier in the case.
Indeed, up to the point of summary judgment
A bu elyam an’s sole argum ent regarding Dr.
Zeta’s termination was that Abuelyaman had complained
to Dr. Bowman that Dr. Zeta was the victim
of discrimination. Abuelyaman argues that before sum-
mary judgment he did advance the argument that Illinois
State retaliated against him because he participated in the
Diversity Office’s investigation of Dr. Zeta’s discrimination
complaint. Therefore, he argues, the district court should
have considered this theory at summary judgment. Con-
trary to Abuelyaman’s position, though, the record is
entirely devoid of any mention of this argument before the
summary judgment stage of the proceedings. It is well
settled that a plaintiff may not advance a new argument in
response to a summary judgment motion. Andree v. Ashland
26 No. 10-2926
Cnty., 818 F.2d 1306, 1314 n.11 (7th Cir. 1987). Therefore,
the district court did not err in refusing to consider
Abuelyaman’s argument at summary judgment, and in
granting Illinois State summary judgment on that theory of
retaliation.
Moreover, even if Abuelyaman had properly presented
this argument, summary judgment would nonetheless still
be appropriate because Abuelyaman never alleged specific
facts that would have allowed for a reasonable inference
that Status Committee members knew of his participation
in Dr. Zeta’s complaint investigation at the time they voted
not to reappoint Abuelyaman. See Maarouf v. Walker Mfg.
Co., 210 F.3d 750, 755 (7th Cir. 2000) (“The critical
issue . . . is whether the person who made the decision to
terminate his employment was aware of the discrimination
allegations at the time, because absent such knowledge
[the plaintiff] lacks a causal link between the termination
and the complaint of discrimination” (citing Dey, 28 F.3d at
1458)). In other words, Abuelyaman failed to put forth
sufficient evidence to allow for a reasonable inference that
his participation in the investigation of Dr. Zeta’s com-
plaint caused his non-reappointment. Therefore, even had
this argument been properly before the district court,
Abuelyaman could not avoid summary judgment.
2. Dr. Delta Complaint
Abuelyaman next challenges the district court’s decision
to grant judgment as a matter of law on his argument that
he was retaliated against because he participated in Dr.
Delta’s complaint investigation. That complaint, filed in
No. 10-2926 27
Fall 2005, cited undue influence by Dr. Dennis in a Search
Committee’s efforts to locate a new professor for the IT
School. The parties’ chief dispute is whether Abuelyaman’s
participation in Dr. Delta’s complaint investigation consti-
tuted a statutorily protected activity. Noticeably absent
from Dr. Delta’s complaint is any reference to discrimina-
tion on the part of Dr. Dennis. This is a serious deficiency;
to be classified as a statutorily protected activity
the complaint needs “to at least say something to indicate
[discrimination] is at issue.” Miller v. Am. Family Mut. Ins.
Co., 203 F.3d 997, 1008 (7th Cir. 2000). But there is nothing
at all in Dr. Delta’s complaint to indicate that a charge of
illegal discrimination was being leveled against Dr. Dennis.
In an attempt to remedy this shortcoming, Abuelyaman
contends that the reason Dr. Delta filed the complaint was
because after the Search Committee had decided to recom-
mend a Middle Eastern applicant, Dr. Dennis pushed a
Caucasian candidate to the front of the list. Further,
Abuelyaman claims that a jury could reasonably infer that
a complaint filed with an office for “Diversity and Affirma-
tive Action” discussed impermissible discrimination. But
that is not what the law says. We must look to all of the
circumstances surrounding the complaint and ask whether
Abuelyaman has produced “ ’evidence from which it could
be reasonably inferred that [Illinois State] more likely than
not knew [he] was concerned about [illegal] discrimina-
tion.’ ” Id. at 1008 (quoting Senner v. Northcentral Technical
Coll., 113 F.3d 750, 758 (7th Cir. 1997)). Abuelyaman
may not “simply speculate[] as to what [his] supervisors
knew”; rather, he must set forth tangible evidence
that indicates Illinois State knew he was participating in a
28 No. 10-2926
complaint that concerned illegal discrimination. Id. at 1008
n.9.
In this case the evidence only reflects Dr. Dennis’s undue
influence exercised over the Search Committee—it does not
allege any illegal discriminatory conduct. Indeed,
Abuelyaman himself testified at trial that he did not recall
mentioning race or nationality to the Diversity Office. Dr.
Delta likewise testified that he complained only about Dr.
Dennis’s excessive interference with the Search Committee,
that voting procedures were not followed, and that the
candidate who was selected was not qualified. Moreover,
the Diversity Office settled on a course of action that
indicates its investigation did not focus on any discrimina-
tory conduct: it elected to merely control the Search Com-
mittee’s voting procedure. There is no indication that any
action was taken to address a concern of illegal discrimina-
tion within the Search Committee itself. Without
more, Abuelyaman’s argument that he engaged in
a statutorily protected activity by participating in
Dr. Delta’s complaint investigation necessarily fails.
Accordingly, the district court did not err in granting
judgment as a matter of law on this argument.6
6
Abuelyaman also argues that it was only minutes after he
informed Dr. Dennis of his participation in the Diversity Office’s
investigation that Dr. Dennis notified him that he would not be
reappointed. He argues that a jury, therefore, could reasonably
infer that Abuelyaman’s non-renewal was based on his partici-
pation in a protected activity. See Dey, 28 F.3d at 1458 (citations
omitted) (“Generally, a plaintiff may establish . . . a [causal] link
(continued...)
No. 10-2926 29
IV. Conclusion
Abuelyaman did not present sufficient direct or circum-
stantial evidence of discriminatory animus, and therefore
the district court properly granted Illinois State summary
judgment on Abuelyaman’s discrimination claim.
Abuelyaman’s retaliation claim also fails because he did
not present in a timely manner the theory that he was
retaliated against because he participated in Dr. Zeta’s
complaint investigation, and because his other retaliation
theory is premised on a complaint that does not constitute
a statutorily protected activity. Accordingly, the district
court properly granted Illinois State summary judgment on
the former retaliation theory, and judgment as a matter of
law at trial on the latter retaliation theory. For these
reasons, we A FFIRM .
6
(...continued)
through evidence that the discharge took place on the heels of
protected activity.”) Yet Abuelyaman’s suspicious-timing
argument is only availing if he engaged in a statutorily pro-
tected activity—he did not, and therefore we need not address
that argument further.
12-13-11