Dr. Laura Hatcher was denied tenure by Southern Illinois University (SIU), and claims that it was because she is a woman, assisted a student in reporting an incident of sexual harassment by an SIU faculty member, and filed a charge against SIU with the Equal Employment Opportunity Commission. SIU responds that it denied Dr. Hatcher tenure because she produced insufficient scholarship. We agree with the district court that Dr. Hatcher did not produce evidence from which a jury could conclude that SIU was lying about its reason for denying her tenure. We also agree that shе was not engaging in speech protected under Title VII or by the First Amendment when she assisted the student with the sexual harassment report. But because her complaint stated a plausible claim of retaliation under Title VII for filing a charge with the EEOC, we reverse and remand the dismissal of that claim.
I. BACKGROUND
In July 2006, SIU hired Dr. Hatcher as a non-tenured assistant professor in the political science department of the College of Liberal Arts (COLA). Dr. Hatcher was
Like at many universities, reviewing candidates for tenure at SIU involves a multi-level process. Candidates are evaluated first by an external review committee, second by the tenured faculty and chairperson of their respective departments, third by the COLA promotion and tenure committee consisting of 10 tenured faculty members across departments, fourth by the dean of the COLA, and finally by the provost and vice chancellor of SIU. At each stеp, the decision-makers consider the candidate’s scholarship, teaching, and service.
About a year before she was up for tenure, Dr. Hatcher assisted a graduate student in the political science department in making a complaint to SIU about a faculty member who the student claimed was sexually harassing her. Dr. Hatcher testified that she believed she was required to help the student make the report based on Dr. Hatcher’s job description.
Before submitting her tenure dossier, Dr. Hatcher received pоsitive annual evaluations. The evaluations from her external reviewers, which were made a part of her dossier, all recommended her for tenure. In reviewing her tenure dossier, the political science department voted 4-2 in favor of promotion and tenure for Dr. Hatcher. In light of that vote, the department chair, Roger Clinton, recommended that Dr. Hatcher receive tenure and promotion. At the next step of the process, the COLA committee voted 5-4 in favor of tenure and 5-4 against promotion. The chair of the COLA committee wrote in his letter to the dean of the COLA, Kimberly Kempf-Leon-ard, that the COLA committee recognized Dr. Hatcher’s success in teaching and service, but was concerned about her lack of academic publications in prestigious political science journals. So the COLA committee recommended that Dr. Hatcher receive tenure, but not promotion.
After receiving the COLA committee’s recommendation, Dean Kempf-Leonard made her own independent review. In Nоvember 2011, Dean Kempf-Leonard sent a letter to the provost, John Nicklow, in which she wrote that while it was a difficult decision, Dr. Hatcher “has not demonstrated excellence in research” and recommended that Dr. Hatcher receive neither tenure nor promotion. Dean Kempf-Leon-ard found that “Dr. Hatcher has a lack of publications in both high-profile venues and a lack of publications in mainstream political science venues.” However, Dean Kempf-Leonard also noted that Dr. Hatсh-er’s work was of high quality. After reviewing her tenure file, Provost Nicklow also noted Dr. Hatcher’s lack of peer-reviewed publications, and recommended against awarding her both tenure and promotion.
During the same tenure cycle, two male professors in Dr. Hatcher’s department, Roudy Hildreth and Stephen Bloom, were also considered for tenure and promotion. The political science department voted 6-0 in favor of promotion and tenure for Dr. Hildreth. Only 3 voted in favor of promotion and tenure for Dr. Bloom, 1 voted against tenure, and 2 members abstained. The COLA Committee voted 10-0 in favor of tenure and promotion for Dr. Bloom, and 10-0 in favor of tenure and 9-1 in favor of promotion for Dr. Hildreth. Dean Kempf-Leonard recommended tenure and promotion for both male candidates, and the provost and vice chancellor adopted those recommendations.
In April 2012, Dr. Hatcher filed a non-contractual grievance with the University’s Judicial Review Board (JRB). The JRB is limited to procedural review of tenure de
In the meantime, on October 3, 2012, Dr. Hatcher filed a charge of discrimination with the Equal Employment Opportunity Commission, claiming that she was unfairly denied promotion because of her gender. After the denial became final, in April 2013, Dr. Hatcher filed a lawsuit against SIU, Chancellor Cheng, and Dean Kempf-Leonard, claiming discrimination and retaliation. The district court granted the defendants’ motion to dismiss Dr. Hatcher’s Title VII retaliation and First Amendment claims. Her remaining claim of gender discrimination was dismissed аt summary judgment. Dr. Hatcher now appeals.
II. ANALYSIS
On appeal, Dr. Hatcher argues that the district court erred in granting the defendants’ motion to dismiss her Title VII and 42 U.S.C. § 1983 retaliation claims, abused its discretion in denying her motion to reconsider its dismissal of those claims, and erred in granting summary judgment for her Title VII gender discrimination claim. We review the district court’s dismissal of Dr. Hatcher’s Title VII and § 1983 claims de novo. Connick v. Myers,
A. Dismissal of Retaliation Claims
To survive a motion to dismiss, a claim must be plausible rather than merely conceivable or speculative. Ashcroft v. Iqbal,
1. Title VII Retaliation Claim for Filing EEOC Charge Was Sufficiently Pled
To state a claim for Title VII retaliation, a plaintiff must plead that she engaged in a statutorily protected activity and was subjected to materially adverse actions as a result of that activity. Burlington Northern & Santa Fe Ry. v. White,
Dr. Hatcher argues on appeal that the district court improperly dismissed her Title VII retaliation claims. She says her complaint makes out two plausible claims of retaliation: first, that she was denied
While Dr. Hatcher’s complaint mentions in a few places that she reported sexual harassment internally on behalf of a student and discussed shortcomings of the sexual harassment policy, there is no allegation in the complaint itself that the student was an employee of SIU. That omission is crucial for Title VII рurposes. Under Title VII, an employee must identify an unlawful employment practice that is prohibited by that statute. 42 U.S.C. § 2000r-3(a). Without this essential information, there is no suggestion in the complaint that in supporting the student, Dr. Hatcher was opposing unlawful employment discrimination, and therefore engaging in a statutorily protected activity.
More difficult is the issue of whether Dr. Hatcher properly pled retaliаtion on the basis of her own filing of an EEOC charge. We have held that a plaintiff must specifically identify the protected activity that she alleges was the source of retaliation. Carlson v. CSX Transp., Inc.
Dr. Hatcher made the following relevant factual allegations in her complaint: (1) she filed her EEOC charge asserting discrimination on the basis of gender on October 3, 2012, (2) during his testimony at the JRB hearing on October 12, 2012, Provost Nicklow told the panel that Dr. Hatcher had filed a charge of discrimination, and (3) on November 27, 2012, Chancellor Cheng declined the JRB’s recommendation to grant Dr. Hatcher tenure, and instead denied her tenure. After making these general factual allegations, the complaint contains a retaliation count
Dr. Hatcher’s complaint specified a protected activity (filing a charge at the EEOC for gender discrimination) and an adverse employment action (denial of tenure). It further pled that SIU retaliated against her for engaging in a protected activity. The short timing between the filing of the charge and Chancellor Cheng’s decision, the fact that the Chancellor declined to act on the JRB’s recommendation, and a lack of other allegations in the complaint which rule out retaliation as a cause for the decision, all take Dr. Hatch-er’s retaliation claim from the realm of the possible into the realm of plausible. See Twombly,
2. First Amendment Retaliation Claim Properly Dismissed
Dr. Hatcher next argues that the district court erred in dismissing her claim that SIU retaliated against her for engaging in protected speech under the First Amendment by speaking on behalf of a student about sexual harassment. SIU responds that Dr. Hatcher’s speech was not protected under the First Amendment because she made it pursuant to her employment.
In order for a public employee to make out a claim of First Amendment retaliation against a government employer, the employee must first establish that he or she was engaging in protected speech. “The threshold inquiry is whether the employee was speaking as a citizen; only then do we inquire into the content of the speech.” Spiegla v. Hull,
Dr. Hatcher argues she spoke as a citizen because of the absenсe of mandatory reporting requirements for her position. But “the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within
Employees’ unsolicited reports of misconduct can be difficult to view as part of their employment duties, since their employers would often prefer thаt they keep quiet. But we have rejected the notion that Garcetti applies only to speech expressly commanded by an employer. Fairley v. Andrews,
Dr. Hatcher’s complaint first alleges that she was a mandated reporter of sexual harassment. It goes on to allege that “Hatcher told Kempf-Leonard that female students subjected to sexual harassment camе to her because she (Hatcher) was the senior female faculty in the Department.” Based on these allegations, SIU filed a motion to dismiss the claim, arguing that Hatcher essentially admitted that she considered the report of sexual harassment to Dean Kempf-Leonard to be part of her faculty duties. In her response to SIU’s motion to dismiss, Hatcher changed course, asserting for the first time that she mistakenly believed that she was a mandated reporter at the time she discussed sexual harassment issues with Dean Kempf-Leonard, but that Dean Kempf-Leonard knew that she was not required to make such a report.
In Heffernan v. City of Paterson, decided after oral argument in this appeal, the Supreme Court ruled that the government could be liable for demoting an employee based on the employer’s mistaken belief that the employee engaged in protected political activity. — U.S. -,
Rather, Dr. Hatcher must provide a plausible basis for speaking as a citizen
Dr. Hatcher also argues that the district court abused its discretion by denying her motion to reconsider the dismissal of her retaliation claims. She argued in that motion that the district court should have permitted her to amend her complaint, rather than dismissing it with prejudice for failure to state a claim. Fatal to Dr. Hatcher’s motion to reconsider was her failure to explain how an amended complaint would cure the deficiencies in her original complaint. Gonzalez-Koeneke,
B. Summary Judgment Proper for Title VII Gender Discrimination Claim
Finally, Dr. Hatcher argues that the district court erred in granting summary judgment to SIU on her Title VII claim of gender discrimination. A plaintiff can survive summary judgment on a Title VII gender discrimination claim by providing either direct or indirect evidence of discrimination. Morgan v. SVT, LLC,
Under the indirect method, an employee must show that she is a member of a protected class, she was qualified for tenure, she was denied tenure, and a similarly situated applicant outside the protected class was granted tenure. Sun v. Bd. of Trustees of Univ. of Ill.,
Nothing in Title VII bans outright an employer’s use of subjective evaluation criteria, and differences in qualifications between job candidates, on their own, cаnnot be evidence of discrimination unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue. Millbrook v. IBP, Inc.,
Because so many factors influence the tenure process and because statistical inferences of discrimination are difficult to draw when there is only a small number of observations ... it can be difficult to infer the presence of an invidious influence such as the sex of a candidate merely by comparing successful and unsuccessful tenure applicants.
Blasdel v. Northwestern Univ.,
Dr. Hatcher argues that the evidence in her case is sufficient under both the direct and indirect methods of proof. The two methods are somewhat intertwined, because evidence that an employer’s reasons for denying tenure are unworthy оf belief can serve both as circumstantial evidence under the direct method and as evidence of pretext to rebut a proffered legitimate motive under the indirect method.
To support both theories, Dr. Hatcher points to the following evidence: (1) the similarity of her publication record to male colleagues who received tenure, (2) testimony from department colleagues that she should have been promoted and was treated unfairly, (3) an email from the Executive Committee Chair of the COLA committee to Dean Kempf-Leonard stating that “Bloom and Hatcher were much more close than the vote, something is going on with the Bloom vote in the department,” (4) Dr. Hatcher’s contention that Dean Kempf-Leonard “cherry-picked” seemingly negative comments from external reviewers for Dr. Hatcher’s tenure review, and did not do the same for her male colleagues, (5) testimony from Dean Kempf-Leonard that she ignored Dr. Hatcher’s attempts to correct factual errors in her denial letter, and (6) the political science department operating paper which recommends that a tenure candidate’s scholarship should be judged by the department.
The problem with Dr. Hatcher’s argument is that none of the above evidence points to a lie by Dean Kempf-Leonard, or by extension, SIU, about the reason she was denied tenure. Particularly problemаtic for her is that Dean Kempf-Leonard’s recommendation was based in large part on the findings of the COLA Committee, which Dr. Hatcher does not appear to contend were discriminatory. Dr. Hatch-er’s tenure vote was more divided than her comparators, so she cannot argue she was clearly better qualified for the position at issue. And while some colleagues expressed frustration and suspicion about Dean Kempf-Leonard’s decision to recommend against tenure, none provided testimony thаt pointed to dissembling by SIU. Their testimony is the type of subjective disagreement with a tenure decision that we have found insufficient to support a claim of discrimination.
It is possible that the dean and provost were harder on Dr. Hatcher than on her male colleagues during tenure review, and some of her colleagues seemed to think that was the case. It should not be a source of pride for SIU that Dr. Hatcher is the first woman to be considered for tenure in the political science department in almost 20 years. The subjectivity of the tenure review process can obscure bias, making it exceedingly difficult to address entrenched inequalities which not only have a negative impact on female faculty with tenure aspirations, but also on the institutions of higher learning that are deprived of their contributions. However, Title VII only permits us to go so far in addressing this problem; in order for a plaintiff to prevail at summary judgment, she cannot simply show she was treated differently. She must provide evidence that creates a material dispute ovеr whether the reason her employer gives for the differential treatment is unworthy of belief. We see no evidence from which a reasonable jury could draw that conclusion here. So the district court did not err in granting summary judgment to SIU on the gender discrimination claim.
III. CONCLUSION
For the foregoing reasons, we Affirm in part, Reverse in part and Remand for proceedings consistent with this opinion.
Notes
. We have not ruled on whether allegations of retaliation against faculty who support students in bringing sexual harassment claims to university officials could state a claim for retaliation under Title IX, but Dr. Hatcher does not make this argument so we do not address it here.