Vaun Monroe v. Columbia College Chicago

V
                           NONPRECEDENTIAL DISPOSITION
                            To be cited only in accordance with
                                     Fed. R. App. P. 32.1



              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                 Argued September 22, 2020
                                  Decided March 19, 2021

                                          Before

                           DIANE S. SYKES, Chief Judge

                           JOEL M. FLAUM, Circuit Judge

                           ILANA DIAMOND ROVNER, Circuit Judge



No. 20-1530
                                                  Appeal from the United States District
VAUN MONROE,                                      Court for the Northern District of Illinois,
    Plaintiff-Appellant,                          Eastern Division.

       v.                                         No. 1:17-cv-05837

COLUMBIA COLLEGE CHICAGO                          Thomas M. Durkin,
and BRUCE SHERIDAN,                               Judge.
      Defendants-Appellees.

                                         ORDER

       After he was denied tenure at Columbia College of Chicago, Vaun Monroe sued
Columbia and his former department chairperson, Bruce Sheridan, on various federal
claims of race discrimination and on state law theories. The district court resolved all of
the claims in favor of the defendants on motions to dismiss and for summary judgment.
A separate opinion issued contemporaneously with this order resolves Monroe’s Title
VI claim. In this order, we affirm the judgment as to his other claims.


                                             I.
No. 20-1530                                                                         Page 2


       Monroe was hired by Columbia College as a tenure-track faculty member in
2007. He was the first Black man hired as a tenure-track instructor in the college’s film
and video department. Sheridan was the chairman of that department.
      During his first year, Monroe received several negative course evaluations.
(Among other criticisms, some students objected to his focus on works by Black artists.)
Sheridan met with Monroe to discuss the evaluations. Monroe, concerned about the
weight Sheridan was placing on student evaluations, pointed out that the criticisms
might be the result of implicit bias against faculty members of color. Sheridan accused
him of “playing the race card” and not assuming responsibility for his classroom.
During Monroe’s second year, a student created a racially-charged website about him,
which department personnel told him to ignore.
       Monroe underwent a formal review in his third year as a tenure-track faculty
member, which was designed both to give him feedback on his performance and
produce a recommendation as to whether he should continue on the tenure track or be
terminated. Sheridan participated in (indeed, directed) the faculty review despite
questions as to whether he should do so as department chair; he raised the issue of
Monroe’s critical student evaluations. The participating faculty members ultimately
voted yes/no on each of three performance areas considered for tenure: Monroe
received zero yes votes on teaching and curriculum development, 16 yes votes and one
no vote on creative or scholarly work, and nine yes and eight no votes on community
service. Sheridan and the Dean of Media Arts subsequently prepared reports which
raised concerns about Monroe’s teaching. Academic Affairs Vice President Louise Love
declined to renew Monroe’s appointment for the following year. But Monroe filed a
successful grievance challenging that decision principally on the ground that no
tenured faculty members had observed his classroom performance as the College’s
evaluation procedures specified. Columbia President Warrick Carter reversed the
decision not to renew Monroe’s contract for the 2011-2012 academic year.
       Monroe alleges that following Carter’s reversal, Sheridan was hostile to Monroe
and retaliated against him by, inter alia, assigning him to teach only introductory-level
classes, assigning a white male with lesser qualifications to teach graduate-level
directing courses (where Monroe had previously received his best evaluations),
choosing white non-tenure track lecturers to fill various screenwriting and
administrative program coordinator provisions, and engaging in “hyper-surveillance”
of Monroe and threatening him with investigations (that never materialized) of even
minor infractions.
       When Monroe’s tenure evaluation began in 2012, the reviewing department
faculty approved his tenure application by a vote of 9-5. Although their report cited
No. 20-1530                                                                            Page 3


continuing concerns that Monroe did not provide timely feedback to students and
respond to student communications, it indicated that his teaching and teaching-related
performance had improved substantially. Sheridan, who did not participate in that
review, wrote a separate, eight-page memorandum as Monroe’s department chair
acknowledging improvements in Monroe’s performance while indicating that
substantial concerns remained regarding his reliability and punctuality, the discharge of
his duties as to student advising, and the thoroughness of his teaching methodology.
Sheridan also excerpted a negative student evaluation from a course where the
comments otherwise were overwhelmingly positive. Sheridan opined that Monroe’s
performance in teaching and teaching-related activity did not meet the requirements for
tenure.
       The All College Tenure Committee voted unanimously to deny Monroe tenure,
noting that his “efforts have consistently fallen short of both the department’s and the
college’s standards” and that “two of his three reviewers did not endorse his tenure
bid.” Vice President (and interim Provost) Love advised Monroe in March 2013 that she
had decided not to grant him tenure.
       Monroe appealed the denial of tenure to Columbia’s incoming President,
Kwang-Wu Kim. On August 12, 2013, Kim rejected the appeal and affirmed Love’s
decision as Provost to deny him tenure. Monroe concluded his terminal year of
employment in May 2014.
       In September 2013, about one month after Kim’s decision, Monroe filed a
discrimination charge with the Chicago Commission on Human Relations. Monroe
eventually filed a Title VII charge of race discrimination and retaliation with the Equal
Employment Opportunity Commission (“EEOC”) on February 7, 2014, but this was
more than 300 days after Love denied his application for tenure. The EEOC accepted
and investigated Monroe’s charge and eventually issued a right-to-sue letter on May 12,
2017, without reaching a conclusion as to the merits (or the timeliness) of his charge.
        Monroe filed this suit in August 2017 after the EEOC issued his right-to-sue
letter. Counts I and II of his amended complaint set forth claims of race discrimination
and retaliation in violation of Title VII. Counts III and IV set forth similar claims of race
discrimination in violation of 42 U.S.C. § 1981 (right to make and enforce contracts) and
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d (proscribing discrimination in
federally funded programs). Counts V and VI set forth state-law claims for intentional
interference with contract and tortious interference with a prospective economic
advantage. R. 50.
       The district court dismissed Counts I through III as untimely. At the outset, the
court agreed with Columbia that Provost Love’s tenure decision in March 2013 was the
No. 20-1530                                                                           Page 4


operative, final employment action for purposes of determining when the 300-day
limitations period for Title VII claims began to run. President Kim’s August 2013
decision simply amounted to appellate review of that otherwise final decision. Because
Monroe did not file his EEOC charge until February 2014, some 326 days after Love’s
tenure decision, Counts I and II were untimely filed. Monroe v. Columbia Coll. of Chicago,

2018 WL 1726426

, at *2–4 (N.D. Ill. April 10, 2018) (applying Delaware State Coll. v. Ricks,

449 U.S. 250

, 260–61, 

101 S. Ct. 498

, 505–06 (1980)). See Lever v. Northwestern Univ., 

979
F.2d 552

, 554–56 (7th Cir. 1992).
       Although Monroe argued that certain discriminatory conduct against him
continued beyond Love’s tenure decision through May 2014, when his terminal year of
employment at Columbia concluded, the court reasoned that none of the conduct
identified constituted an adverse employment action with tangible consequences.
Monroe v. Columbia Coll. of Chicago, 

2018 WL 4074190

, at *3–4 (N.D. Ill. Aug. 27, 2018).
      Monroe also alleged that he was subject to a hostile working environment that
continued through his final year, but the district court was not convinced that the
conduct he identified as harassing rose to the level of a hostile environment.

Id., at *5.

       Finally, Monroe contended that Columbia ought to be equitably estopped from
challenging the timeliness of his complaint, but the court rejected this argument also.
The court noted that equitable estoppel requires some sort of deliberate, deceptive
conduct on the part of the defendant that caused the untimeliness. Apart from his own
decision to originally file his discrimination charge in the wrong forum (with which
Columbia had nothing to do), Monroe alleged only that Columbia had “lulled” him into
thinking that it was the President rather than the Provost who was the final
decisionmaker for limitations purposes. But simply because Columbia had multiple
levels of review, including appellate review at the President’s level, and Monroe had
succeeded previously in securing a reversal of the Provost’s decision, was not sufficient
to show any deliberate, wrongful action on Columbia’s part.

Id., at *5–6.

       The court went on to find that Monroe’s section 1981 claim (Count III) was
likewise untimely. That claim is subject to a four-year statute of limitations. Monroe was
denied tenure by the Provost in March 2013, but he did not file his federal complaint
until August 2017, more than four years later.

Id., at *6.

        The court subsequently entered summary judgment in Columbia’s favor as to
Counts IV through VI. Monroe v. Columbia Coll. Chicago, 

2020 WL 1503593

(N.D. Ill. Mar.
30, 2020). (The judgment as to Count IV, asserting the Title VI claim for race-based
exclusion from participation in a federally-funded program, is addressed in our
separate opinion.) Count V is a claim for intentional interference with contract under
Illinois law. The gist of the claim is that Sheridan, by submitting factually false reports
No. 20-1530                                                                                            Page 5


as to Monroe’s performance, effectively caused Columbia to breach its contract with
Monroe by denying him tenure notwithstanding the fact that he met the College’s
criteria for tenured employment and was “entitled” to tenure. R. 50 at 24. Judge Durkin
assumed that the published tenure criteria constituted a contract, but he emphasized
that Columbia, as opposed to Sheridan, had done nothing to breach that contract.

Id., at
*5.

Finally, Count VI asserts a claim for tortious interference with a prospective
economic advantage. Monroe alleges that Sheridan, by misrepresenting his
performance, effectively doomed his tenure application. But Judge Durkin noted that
the first element of such a claim is a reasonable expectation of entering into a business
relationship, which in this case would be a grant of tenure and a renewal of his teaching
contract. Yet Columbia’s tenure criteria make clear that there is no right to tenure and
that tenure is granted only to the most highly-qualified individuals. Monroe “d[id] not
cite a single case” in which a candidate could say that he had a reasonable expectation
of being granted tenure. Moreover, from his first year onward, there were criticisms of
Monroe’s performance. So while Monroe may have hoped that he would be granted
tenure, he could not reasonably claim to have expected it.

Id., at *6.

                                                      II.
A.      Timeliness of Counts I and II: discriminatory acts in Monroe’s terminal year.
        The Title VII claims of race discrimination and retaliation set forth in Counts I
and II of Monroe’s complaint are subject in practice to a 300-day limitations period in
Illinois, in view of the EEOC’s work-sharing arrangement with the Illinois Department
of Human Rights. See 42 U.S.C. § 2000e-5(e)(1); Mirza v. Neiman Marcus Grp., Inc., 649 F.
Supp. 2d 837, 849–52 (N.D. Ill. 2009). As noted, Monroe did not file his Title VII charge
with the EEOC until more than 300 days after the Provost’s March 2013 decision to
deny him tenure.1
       Although the denial of tenure takes center stage in Monroe’s complaint, he
alleges that the College took other, related adverse employment actions against him
through the end of his terminal year in May 2014 and contends that because these
actions took place within the limitations period, his complaint is timely. These include
such things as not allowing him to teach advanced courses, denying him a position as a
project coordinator, preventing him from interacting with community groups,


        1
           Monroe’s prior filing with the Chicago Commission on Human Relations is of no benefit to him
in this respect because the Commission has no work-sharing relationship with the EEOC. See 29 C.F.R.
§ 1601.74(a); Crawford v. Bank of Am., 

986 F. Supp. 506

, 509 (N.D. Ill. 1997); Osborn v. E.J. Brach, Inc., 864
F. Supp 56, 58 n.4 (N.D. Ill. 1994).
No. 20-1530                                                                              Page 6


denigrating his work to others, and disallowing his participation in inter-disciplinary
teaching. In Monroe’s view, such acts, taken together, could be thought to have dimmed
his future career employment prospects and denied him additional income. See
Herrnreiter v. Chicago Hous. Auth., 

315 F.3d 742

, 744 (7th Cir. 2002).
        We agree with the district court that these additional allegations are insufficient
to establish a distinct, material adverse action that might render Counts I and II timely.
Among the various actions alleged, the one that would have had the most obvious
potential to affect Monroe’s employment prospects elsewhere was denying him the
opportunity to teach more advanced courses. But Monroe has alleged in his amended
complaint that he did in fact teach advanced courses in his terminal year. R. 50 ¶ 50. As
for the remaining actions, Monroe has not made a plausible case for why these were
significant enough to result in concrete harm to his career prospects and constitute an
adverse employment action on their own.
B.     Timeliness of Counts I and II: hostile work environment.
        Monroe alternatively argues that he was subject to a hostile working
environment which continued through his terminal year. Assuming that there were
underlying acts of harassment that took place in Monroe’s final year at Columbia, then
one or both of his Title VII claims might be timely to the extent they seek relief for a
hostile environment. See Nat’l R.R. Passenger Corp. v. Morgan, 

536 U.S. 101

, 118, 

125 S. Ct.
2061

, 2075 (2002). However, the harassment underlying a hostile environment claim
must qualify as severe or pervasive in order to be actionable. Harris v. Forklift Sys., Inc.,

510 U.S. 17

, 21–22, 

114 S. Ct. 367

, 370–71 (1993), abrogated on other grounds, Burlington
Indus., Inc. v. Ellerth, 

524 U.S. 742

, 

118 S. Ct. 2257

(1998). Among the pertinent negative
actions briefly referenced in the complaint (e.g., Sheridan accusing Monroe of “playing
the race card” and engaging in “hyper-surveillance” of his activities) and flagged in the
briefing, none qualify as severe, and neither do the allegations plausibly describe a
workplace that was permeated with offensive and demeaning conduct over a
significant period of time. See

id. at 21, 114

S. Ct. at 370; Cerros v. Steel Techs., Inc., 

288
F.3d 1040

, 1047 (7th Cir. 2002).
C.     Timeliness of Counts I, II, III, and VI: equitable estoppel.
       Monroe also asserts that equitable estoppel ought to preclude Columbia from
arguing that his Title VII, section 1981, and his Title VI claims are untimely. He makes
two points in this regard. First, citing a Third Circuit case, Oshiver v. Levin, Fishbein,
Sedran & Berman, 

38 F.3d 1380

, 1390 (3d Cir. 1994), overruled in part on other grounds by
Rotkiske v. Klemm, 

890 F.3d 422

, 428 (3d Cir. 2018) (en banc), j. aff’d, 

140 S. Ct. 355

(2019),
Monroe argues that mistakenly filing a complaint in the wrong forum can be a basis for
No. 20-1530                                                                             Page 7


equitable relief. Oshiver’s conception of when equitable relief is appropriate is broader
than the one this court has adopted, see Thelen v. Marc’s Big Boy Corp., 

64 F.3d 264

,
267–68 (7th Cir. 1995), but Monroe appears to rely on Oshiver’s discussion of a plaintiff’s
diligence, and the importance of that diligence in awarding equitable relief, for the
notion that his own timely pursuit of relief, albeit initially in the wrong forum (the
Chicago Commission on Human Relations), paves the way for him to invoke the
doctrine of equitable estoppel and to argue that Columbia’s wrongdoing should
support the application of that doctrine and excuse the tardy filing of his EEOC charge.
Reply Br. at 6–7. Monroe thus goes on to argue that Columbia made statements to the
EEOC indicating, contrary to its argument now, that the Provost’s March 2013 tenure
decision was merely a recommendation, and that it was President Kim who made the
final tenure decision in August 2013. See R. 55-1 at 6, 8. These statements purportedly
misled Monroe into believing that the statute of limitations on his discrimination claims
did not begin to run until August 2013, when Kim affirmed the Provost’s decision.
Compare Williamson v. Indiana Univ., 

345 F.3d 459

, 463 (7th Cir. 2003) (rejecting plaintiff’s
invocation of equitable estoppel in the absence of evidence that either EEOC or
defendant took active steps to prevent plaintiff from timely filing claim), with Cada v.
Baxter Healthcare Corp., 

920 F.2d 446

, 450–51 (7th Cir. 1990) (indicating equitable
estoppel would be appropriate when defendant has promised not to plead statute of
limitations).
       Monroe’s equitable estoppel theory goes nowhere. First, with respect to the Title
VII claims set forth in Counts I and II, Columbia made these statements to the EEOC in
April 2014, after Monroe had already filed his EEOC charge late, so these statements
cannot be said to have “prevented” Monroe from timely pursuing his EEOC charge.
Equitable estoppel thus cannot rescue Counts I and II.
        Second, as to Counts III (section 1981) and IV (Title VI) Monroe contends that
had he realized it was the Provost’s decision that started the limitations clock, he would
have more timely filed his federal complaint; instead, Columbia’s statements to the
EEOC led him to believe the clock did not begin to run until August 2013. He adds that
neither Columbia nor the EEOC raised any questions as to the timeliness of his claims
during the years his charge was pending with the agency. But, as Judge Durkin
emphasized, equitable estoppel requires a deliberate strategy on the part of the
defendant. We see nothing in the record that supports an inference that Columbia was
deliberately trying to deceive or lull Monroe on this point so that he would fail to timely
pursue legal relief on his claims, or even that the College clearly understood that its
actions would cause Monroe to delay taking action in pursuit of his claims. See Hedrich
v. Bd. of Regents of Univ. of Wis. Sys., 

274 F.3d 1174

, 1182 (7th Cir. 2001). It is not unusual
No. 20-1530                                                                            Page 8


for lawyers to overlook points or to advance new arguments as a case proceeds, after
all.
D.     Count V: intentional interference with contract.
       Monroe’s state-law claim for interference with contract against Sheridan posits
that Sheridan caused Columbia to breach its contractual agreement to base its tenure
decision on its published criteria for tenure when it relied on Sheridan’s evaluations of
his performance rather than those criteria, without recognizing that Sheridan had
placed limitations on Monroe’s ability to meet these criteria and had misrepresented
Monroe’s performance as a teacher. But, as the district court reasoned, there is no
evidence that Columbia abandoned its stated criteria for tenure. Rather, it was
influenced by Sheridan’s reports (as one might expect, given his position as Monroe’s
department chairperson) in applying those criteria. Whatever wrongdoing Monroe
attributes to Sheridan, the result was not a breach of contract by Columbia.
E.     Count VI: tortious interference with prospective economic advantage.
       Count VI alleges that Sheridan, by submitting his unfounded negative evaluation
of Monroe, tortiously interfered with Monroe’s tenure application (and, in turn, his
future employment prospects). This claim arguably is a better fit for what Monroe is
alleging, i.e., that Monroe was qualified and expected to be given tenure but Sheridan
deliberately interfered with the process and sank his tenure application. But this claim,
as the district court noted, requires as its first element a reasonable expectation of
entering into a business relationship. Foster v. Principal Life Ins. Co., 

806 F.3d 967

, 971
(7th Cir. 2015) (quoting Voyles v. Sandia Mortg. Co., 

751 N.E.2d 1126

, 1133 (Ill. 2001)).
Tenure is a highly discretionary decision and is frequently denied to any number of
competent candidates whom a university deems not to meet its criteria. Nothing in
Columbia’s published tenure criteria or in its dealings with Monroe promised or
guaranteed him tenure, whatever his unilateral hopes may have been. Moreover,
although he received the favorable (albeit divided) vote of the faculty members in his
department, and there appears to have been a consensus that his teaching and teaching-
related performance had substantially improved over the course of his time at
Columbia, there were certain persistent criticisms of Monroe in that respect throughout
his time there. So it is just not plausible to say that he had a reasonable expectation of
being granted tenure. See Goswami v. DePaul Univ., 

2014 WL 125600

, at *5–7 (N.D. Ill.
Jan. 14, 2014) (Illinois law) (noting, inter alia, that glowing reviews did not give rise to a
reasonable expectation of tenure and contract renewal); Montes v. Cicero Pub. Sch. Dist.
No. 99, 

141 F. Supp. 3d 885

, 900–01 (N.D. Ill. 2015) (Illinois law) (non-renewal of year-to-
year teaching contract). This claim fails also.
No. 20-1530                                                                      Page 9


                                          III.
      For all of the foregoing reasons, we AFFIRM the district court’s judgment as to
Counts I through III and V and VI of Monroe’s amended complaint.

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