7th Circuit Affirms Summary Judgment on Title VII and Section 1981 Race Discrimination Claims

On September 4, 2018, the 7th Circuit affirmed an order of summary judgment in a lawsuit filed by an assistant professor against a state university, in which the professor alleged that the University denied him tenure because of his race, African-American, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII") and Section 1981 of the Civil Rights Act of 1866 ("Section 1981").  Haynes v. Indiana University, No. 17-2890 (7th Cir. 9/4/2018).  The plaintiff was employed as an assistant professor in the Department of Education at Indiana University.  At the conclusion of his six-year probationary employment contract, he was denied tenure.  The 7th Circuit held that the record does not support an inference that the University denied tenure because of the plaintiff's race.

The professor filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"), and ultimately filed a lawsuit in federal court.  In his lawsuit, he sought several forms of injunctive relief, including reinstatement of employment, as well as monetary damages for lost wages and other injuries.  Unfortunately for the plaintiff, he filed his underlying charge of discrimination for his Title VII race discrimination claim too late.  A Title VII plaintiff must first file a timely charge of discrimination with the EEOC within 300 days of when the defendant-employer has taken the allegedly unlawful, discriminatory adverse employment action that injures the plaintiff-employee.  Filing a charge of discrimination with the EEOC is an administrative prerequisite to filing a Title VII lawsuit in federal court, also referred to as a requirement that a Title VII plaintiff must exhaust administrative remedies (and obtain a Notice of Rights to Sue from the EEOC) before filing a Title VII lawsuit in federal court.  The 7th Circuit ruled that the plaintiff's EEOC Charge was untimely because he did not file it within 300 days of the date on which he was informed of the University's decision to deny him tenure.  His equitable tolling argument was of no avail.  A court may apply the doctrine of equitable tolling to forgive the late filing of a discrimination charge only if a reasonable person in his position would not have been aware of the possibility of a claim of discrimination at the time of the adverse employment action--in this case the tenure decision.  But even assuming, arguendo, that equitable tolling applied, the plaintiff still waited too long after the time that he himself alleged that he first became aware of racial discrimination against him.  Equitable tolling does not restart the 300-day filing period or create an open-ended filing period; rather, tolling is appropriate only for a length of time within which it would have been reasonable to file an administrative complaint; and the plaintiff's three months' wait from the time that he admittedly became aware of or suspected discrimination was just too long.  Therefore, his Title VII race discrimination claim failed for lack of a timely EEOC complaint.

Section 1981 is a post-Civil War civil rights statute that provides all persons within the jurisdiction of the United States the same right to make and enforce contracts.  The evidentiary burden for a Section 1981 race discrimination claim is analogous if not the same as that for a Title VII race case.  The plaintiff's case may proceed to trial only if the evidence would permit a reasonable fact-finder to conclude that the plaintiff's race caused the discharge or other adverse employment action.  The 7th Circuit stated that this burden is especially difficult to meet when it comes to academic tenure.  "We have long recognized the 'nuanced nature' of tenure decisions and our corresponding reticence to 'second-guess the expert decisions of faculty committees'....Accordingly, we closely scrutinize discrimination claims in this context to be sure the dispute is not simply one of academic disagreement with the underlying decision to deny tenure."  A plaintiff's burden to demonstrate that his race precipitated an adverse employment action is made even more challenging by the layered academic tenure process, since it entails several independent levels of review by multiple committees and, therefore, tends to diminish or obviate the required causal link between an identifiable decision-maker's discriminatory motivation and the tenure decision.  Thus, in the academic tenure setting, a plaintiff needs, "compelling evidence that 'clear discrimination' pervasively infected the final tenure decision.  According to the 7th Circuit, this case was not even a close one, and the 7th Circuit did not need to, "rely much on the finer points of academic tenure and its intersection with antidiscrimination law."  The plaintiff's claim failed because he lacked any evidence to suggest that the University denied him tenure because of his race.