In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2284
SHARON ADELMAN-REYES,
Plaintiff-Appellant,
v.
SAINT XAVIER UNIVERSITY and BEVERLY GULLEY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 3269—Samuel Der-Yeghiayan, Judge.
____________
ARGUED NOVEMBER 27, 2006—DECIDED SEPTEMBER 14, 2007
____________
Before EASTERBROOK, Chief Judge, and ROVNER and
SYKES, Circuit Judges.
SYKES, Circuit Judge. Sharon Adelman-Reyes filed
suit in federal court alleging her former employer, Saint
Xavier University (“University”), denied her tenure
because of her Jewish faith in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. Adelman-
Reyes also alleged that the dean of the University’s School
of Education tortiously interfered with her prospective
employment at the University by writing a negative tenure
recommendation letter. The district court granted sum-
mary judgment for the defendants. Adelman-Reyes
appeals, and we affirm.
2 No. 06-2284
I. Background
In 1998 Adelman-Reyes accepted a faculty position in
the School of Education at Saint Xavier University in
Chicago. Beverly Gulley, the dean of the School of Educa-
tion, recommended Adelman-Reyes be hired and served as
her supervisor. Initially Adelman-Reyes split her time
between administrative duties as the Coordinator of Urban
Initiatives and a teaching position in the English-as-a-
Second-Language (“ESL”)/Bilingual program. In 2001 she
received a tenure-track teaching position, and in 2002 she
applied for an associate professor position. Gulley wrote a
letter to the University Rank & Tenure Committee sup-
porting Adelman-Reyes’s application, and in March 2003
Adelman-Reyes was promoted to associate professor.
Shortly thereafter, Gulley formally evaluated Adelman-
Reyes for the first time, and in the evaluation suggested
she “attend service functions that support the School [of
Education] and University from time to time.”
Adelman-Reyes applied for tenure in the fall of 2003,
triggering the University’s tenure evaluation process. At
St. Xavier, a tenure candidate’s dossier is first evaluated
by the candidate’s college Rank & Tenure Committee,
which makes a recommendation to the college dean for
review. The dean, in turn, prepares a recommendation
letter to the University Rank & Tenure Committee
(“University Committee”). The dean’s recommendation,
along with the candidate’s dossier, is forwarded to the
University Committee for consideration and decision. The
University Committee’s decision is then sent to the Vice
President of Academic Affairs, who makes a recommenda-
tion to the President, who formally confers or denies
tenure.
In this instance, the School of Education Rank & Tenure
Committee (“SOE Committee”) recommended Adelman-
Reyes receive tenure, rating her teaching as “good,” her
No. 06-2284 3
scholarship as “excellent,” and her service to the School of
Education and the University as “good.” This information
was forwarded to Gulley. At this point in the process, the
Vice President of Academic Affairs, Christopher Chalokwu,
met with Gulley to discuss Adelman-Reyes’s tenure
application. Chalokwu perceived a personality conflict
between Gulley and Adelman-Reyes and warned Gulley
not to make the tenure process political. During this
conversation, Gulley told Chalokwu that Adelman-Reyes
missed “work or other University events due to the
celebration of Jewish holidays.”
Gulley ultimately recommended against tenure. Her
formal letter to the University Committee rated Adelman-
Reyes’s teaching as “good,” her scholarship and profes-
sional development as “very good,” and her service as
“fair.” Gulley commented negatively about Adelman-
Reyes’s service on committees and mentioned negative
student comments Adelman-Reyes had received in previ-
ous years. Gulley also cited declining enrollment trends
in the ESL/Bilingual program, although Adelman-Reyes
had no direct responsibility for program enrollment or
marketing.
After reviewing Adelman-Reyes’s tenure dossier, the
SOE Committee’s positive recommendation, and Gulley’s
negative recommendation, the University Committee rated
Adelman-Reyes’s teaching as “fair,” her scholarship and
professional development as “good,” and her service as
“good.” The University Committee recommended Adelman-
Reyes not receive tenure; Chalokwu and the President
agreed. Muhammad Chishty, a University Committee
member, characterized the deliberations on Adelman-
Reyes’s tenure application as considerable, extremely
emotional, and heated. Chishty also told Adelman-Reyes
that Gulley’s negative recommendation weighed heavily
in the University Committee’s decision to deny tenure.
This is consistent with Chalokwu’s statement that a
4 No. 06-2284
dean’s recommendation on tenure is ordinarily “very
central” and “very crucial” to the tenure process.
Adelman-Reyes filed a formal grievance with the Univer-
sity challenging the denial of her tenure application. She
alleged that Gulley discriminated against her because of
her “strong advocacy stance for educational equity via
bilingual education and [her] subsequent attempts to bring
the content of the ESL/Bilingual Approval Program out of
the margins and into the mainstream of the School of
Education.” Significantly, Adelman-Reyes did not allege
discrimination on account of her religion. The faculty
grievance committee concluded that Gulley’s letter con-
tained some unsupported assertions regarding Adelman-
Reyes’s qualifications for tenure; nevertheless, a formal
hearing committee, which included one member selected
by Adelman-Reyes, voted 2-1 to uphold the denial of
tenure. The President in turn upheld this decision.
Adelman-Reyes then filed suit against the University
and Gulley, and for the first time, accused the University
of religious discrimination under Title VII, 42 U.S.C.
§ 2000e-2. The district court, granting the University’s
motion for summary judgment, held that Adelman-Reyes
failed to establish a prima facie case of discrimination and
failed to show that the University’s reasons for denying
tenure were pretextual. The district court also granted
Gulley’s motion for summary judgment on Adelman-
Reyes’s tortious interference claim because Adelman-Reyes
did not raise any facts from which a reasonable jury
could infer that Gulley acted with the state of mind
required for this claim.
II. Analysis
We review the district court’s grant of summary judg-
ment de novo, “construing all facts, and drawing all
No. 06-2284 5
reasonable inferences from those facts” in favor of
Adelman-Reyes. Peele v. Country Mut. Ins. Co., 288 F.3d
319, 326 (7th Cir. 2002). Summary judgment is appro-
priate “if the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
“[T]o avoid summary judgment, the nonmovant bears the
burden of setting forth ‘specific facts showing that there
is a genuine issue for trial.’ ” Vanasco v. Nat’l-Louis Univ.,
137 F.3d 962, 965 (7th Cir. 2005) (quoting FED. R. CIV. P.
56(e)).
A. Religious Discrimination Claim
Adelman-Reyes presents her Title VII religious discrimi-
nation claim under the McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), indirect burden-shifting method
of proof. She therefore has the initial burden to establish
a prima facie case of discrimination by showing (1) she
is a member of a protected class, (2) she was qualified for
tenure, (3) she was denied tenure, and (4) a similarly
situated applicant not in the protected class was granted
tenure. Namenwirth v. Bd. of Regents of Univ. of Wis. Sys.,
769 F.2d 1235, 1240 (7th Cir. 1985). If she establishes a
prima facie case,1 the burden shifts to the University to
1
Adelman-Reyes contends the University failed to challenge
her prima facie case in the district court. (The University
focused on the reason tenure was denied and why that rationale
was not pretextual.) Because Adelman-Reyes has the burden of
establishing a prima facie case, the University’s general assertion
that she cannot do so is sufficient to put her to that burden and
preserve the matter for appeal. Moreover, “we have frequently
(continued...)
6 No. 06-2284
offer a nondiscriminatory reason for denying Adelman-
Reyes tenure. If the University does so, the burden shifts
back to Adelman-Reyes to submit evidence that the Univer-
sity’s proffered explanation is a pretext for religious
discrimination.
The prima facie case and pretext inquiries often overlap;
we may skip the analysis of a plaintiff ’s prima facie case
and proceed directly to the evaluation of pretext if the
defendant offers a nondiscriminatory explanation for
its employment decision. Abioye v. Sundstrand Corp., 164
F.3d 364, 368 (7th Cir. 1998). We find it unnecessary here
to evaluate whether Adelman-Reyes established a prima
facie case.2 The University has said it denied tenure
because Adelman-Reyes did not show promise of continued
contribution to the intellectual life of the University. This
is a nondiscriminatory explanation, and Adelman-Reyes
has not submitted evidence to create a triable issue as to
whether this reason is a pretext for discrimination on
account of her religion.
1
(...continued)
warned litigants that the prima facie case must be established
and not merely incanted.” Grayson v. O’Neill, 308 F.3d 808, 818
(7th Cir. 2002).
2
The district court held that Adelman-Reyes failed to carry her
burden of identifying a similarly situated tenure applicant not
in her protected class who was treated more favorably. Crawford
v. Ind. Harbor Belt R.R. Co., 461 F.3d 844, 846-47 (7th Cir. 2006)
(stating an employee is similarly situated if the employee is
comparable to the plaintiff “in all material respects”). Although
we are focusing our analysis on the issue of pretext, we note
Adelman-Reyes identified Mitra Fallahi, another professor in the
School of Education, as a similarly situated tenure applicant not
of the Jewish faith who was treated more favorably. Adelman-
Reyes and Fallahi became professors at the same time and
sought tenure at the same time.
No. 06-2284 7
Important for the pretext analysis in this case, Adelman-
Reyes does not claim the President or any member of the
University Committee was motivated by religious bias
in denying her tenure application—she claims only that
Gulley was so motivated.3 Accordingly, we will focus our
attention on whether Adelman-Reyes has come forward
with sufficient evidence to create a factual dispute on
whether Gulley’s reasons for recommending against ten-
ure were pretextual.
“A pretext . . . is a deliberate falsehood.” Forrester v.
Rauland-Borg Corp., 453 F.3d 416, 419 (7th Cir. 2006). To
show pretext, Adelman-Reyes must establish “ ‘by a
preponderance of the evidence that the legitimate reasons
offered by . . . [the University, i.e., Gulley] were not its
true reasons, but were a pretext for discrimination.’ ”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
143 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)). Gulley recommended against
tenure because of Adelman-Reyes’s lack of service on
School of Education and University committees, certain
negative student comments, and declining enrollment
trends in the ESL/Bilingual program. Adelman-Reyes’s
evidence is insufficient to permit a reasonable jury to
conclude that these reasons were deliberately false.
The Supreme Court has held that “an employer would
be entitled to judgment as a matter of law if the record
3
In this case, the University can be liable under Title VII only
if Gulley (as the lone alleged discriminator) influenced the
adverse employment action. Lust v. Sealy, Inc., 383 F.3d 580,
584-85 (7th Cir. 2004); see also Brewer v. Bd. of Trs. of the Univ.
of Ill., 479 F.3d 908, 919-20 (7th Cir. 2007) (stating summary
judgment can be upheld despite discriminatory comment
that had some influence on an employment decision). Adelman-
Reyes has adduced enough evidence to permit a reasonable
jury to infer that a dean’s recommendation letter influences
the University Committee’s tenure decision.
8 No. 06-2284
conclusively revealed some other, nondiscriminatory
reason for the employer’s decision, or if the plaintiff
created only a weak issue of fact as to whether the em-
ployer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimina-
tion had occurred.” Reeves, 530 U.S. at 148. The Court held
in Reeves that “ ‘[i]t is not enough . . . to dis believe the
employer; the factfinder must believe the plaintiff ’s
explanation of intentional discrimination.’ ” Id. at 147
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993)); see also Keri v. Bd. of Trs. of Purdue Univ., 458
F.3d 620, 646 (7th Cir. 2006) (“In a word, the Plaintiff
must establish that . . . [the employer’s] reasons for the . . .
[adverse employment action] were merely made up to
cover up . . . [its] discriminatory reasons.”).
Adelman-Reyes offered the following evidence that
Gulley’s reasons were pretext for religious discrimination:
a colleague, Priscilla Hartwig, overheard Gulley say that
Adelman-Reyes was a “liberal union-oriented Jew,” and
Gulley complained that Adelman-Reyes missed University
events because of the Jewish holidays. There is nothing
in the record linking the first of these remarks to the
employment decision in question; we have previously held
that “stray remarks that are neither proximate nor re-
lated to the employment decision are insufficient to defeat
summary judgment.” Sun v. Bd. of Trs. of the Univ. of Ill.,
473 F.3d 799, 813 (7th Cir. 2007). The second remark,
though perhaps sufficiently linked to the employment
decision, is not enough to establish pretext in the particu-
lar context of this case—a challenge to a university tenure
decision. This is especially so in light of Adelman-Reyes’s
failure to even mention religious discrimination in her
No. 06-2284 9
formal grievance filed with the University,4 and also her
concession that neither the President nor the University
Committee were motivated by religious bias. Reeves, 530
U.S. at 146; Sun, 473 F.3d at 815.
We have previously observed that “tenure cases require
something more than mere qualification; the department
must believe the candidate has a certain amount of
promise. . . . Given the nuanced nature of such decisions,
we generally do not ‘second-guess the expert decisions of
faculty committees.’ ” Sun, 473 F.3d at 815 (citing
Namenwirth, 769 F.2d at 1242, and quoting Vanasco, 137
F.3d at 968). We accept that a dean’s recommendation has
significant influence on the tenure process. However,
because tenure decisions typically involve “numerous
layers of review” by “independent and University-wide
committees,” the causal connection between any possible
discriminatory motive of a subordinate participant in the
tenure process and the ultimate tenure decision is weak or
nonexistent. Id. at 813. Accordingly, “in the absence of
clear discrimination,” we are generally “reluctant to review
the merits of tenure decisions,” recognizing that “scholars
are in the best position to make the highly subjective
judgments related [to] the review of scholarship and
university service.” Farrell v. Butler Univ., 421 F.3d 609,
616 (7th Cir. 2005).
St. Xavier’s tenure process was typical in that it in-
volved multiple layers of independent review. Gulley’s
negative recommendation was reevaluated by the Univer-
sity Committee in light of Adelman-Reyes’s complete
4
In her formal grievance challenging the denial of tenure,
Adelman-Reyes asserted that Gulley was biased against her
because she strongly advocated bringing bilingual education “out
of the margins and into the mainstream of the School of Educa-
tion.”
10 No. 06-2284
dossier and the SOE Committee’s positive recommenda-
tion. The University Committee’s recommendation was
then reviewed by the Vice President of Academic Affairs
and ultimately by the University’s President. Adelman-
Reyes’s evidence is simply too weak to permit a reasonable
factfinder to conclude that the reason she was denied
tenure—that she showed insufficient promise of continued
contribution to the University’s intellectual commu-
nity—was a cover for religious discrimination. Accordingly,
the district court properly granted summary judgment
in favor of the University on Adelman-Reyes’s Title VII
claim.
B. Tortious Interference Claim
Adelman-Reyes sued Gulley in her individual capacity
for tortious interference with prospective economic advan-
tage. Illinois law governs this tort claim; to succeed,
Adelman-Reyes must establish “ ‘(1) a reasonable expec-
tancy of entering into a valid business relationship, (2) the
defendant’s knowledge of the expectancy, (3) an inten-
tional and unjustified interference by the defendant that
induced or caused a breach or termination of the expec-
tancy, and (4) damage to the plaintiff resulting from the
defendant’s interference.’ ” Evans v. City of Chicago, 434
F.3d 916, 929 (7th Cir. 2006) (quoting Anderson v. Vanden
Dorpel, 667 N.E.2d 1296, 1299 (Ill. 1996)).
The district court concluded Adelman-Reyes could not
establish the third element because Gulley’s tenure
recommendation did not cause the tenure denial. The court
noted that the University Committee considered more than
just Gulley’s recommendation; it considered the SOE
Committee’s recommendation as well as Adelman-Reyes’s
complete dossier. Even assuming Adelman-Reyes could
establish each element of the tort, however, the district
court held that Gulley is insulated from liability based on
No. 06-2284 11
qualified privilege. Under Illinois law, a qualified privilege
protects employers’ officers from being sued for tortious
interference. Welch v. Ill. Sup. Ct., 751 N.E.2d 1187, 1197
(Ill. App. 2001); Ali v. Shaw, 481 F.3d 942, 945 (7th Cir.
2007) (“In the corporate world, officers enjoy immunity
from . . . [tortious interference] claims provided that they
took the action in pursuit of the legitimate interests of the
company.”) (citing Swager v. Couri, 395 N.E.2d 921, 927-28
(Ill. 1979)); see also Fellhauer v. City of Geneva, 568
N.E.2d 870, 877-79 (Ill. 1991) (holding that public em-
ployee discharged by official in charge of hiring and firing
did not state a claim for tortious interference with eco-
nomic advantage). The privilege can be abused (and thus
lost) if the official acts maliciously. Welch, 751 N.E.2d
at 1197.
Adelman-Reyes argues Gulley abused her privilege
and thus is subject to liability, but the evidence falls far
short of providing any basis from which to infer that
Gulley acted maliciously. Malice in this context requires “a
direct intention to injure” or with “a reckless disregard
of . . . [Adelman-Reyes’s] rights and of the consequences
that may result” to her. Kuwik v. Starmark Star Mktg. &
Admin., 619 N.E.2d 129, 135 (Ill. 1993). There is evidence
in the record of an ongoing conflict between Adelman-
Reyes and Gulley about the future direction of the
ESL/Bilingual program, and also that the University’s
grievance committee concluded certain statements in
Gulley’s adverse tenure recommendation were not prop-
erly supported.5 But that is all.
5
Adelman-Reyes cannot rely on evidence related to Gulley’s
alleged religious discrimination to support her tortious interfer-
ence claim because the Illinois Human Rights Commission is
vested with exclusive jurisdiction over claims that are “inextrica-
bly linked to a civil rights violation such that there is no inde-
(continued...)
12 No. 06-2284
As we have noted in affirming summary judgment on
Adelman-Reyes’s discrimination claim, tenure decisions
“necessarily rely on subjective judgments about academic
potential. Experienced faculty members may well come
to different conclusions when confronted with voluminous
and nuanced information about a colleague’s overall
capacity to make a long-term institutional contribution.”
Vanasco, 137 F.3d at 968. Moreover, “winning the esteem
of one’s colleagues is just an essential part of securing
tenure.” Namenwirth, 769 F.2d at 1243. Gulley’s recom-
mendation communicated her subjective opinion about
Adelman-Reyes’s suitability for tenure; it is worth noting
that the University’s established tenure process re-
quired her to submit it. There is no evidence suggesting
Gulley went out of her way to sabotage Adelman-Reyes’s
career at the University. To the contrary, Gulley previ-
ously promoted Adelman-Reyes to a tenure-track teach-
ing position and then recommended her for an associate
professor position. Adelman-Reyes has produced no
evidence from which a reasonable juror could infer that
Gulley was acting recklessly or with a direct intent to
injure her. Accordingly, summary judgment dismissing
Adelman-Reyes’s tortious interference claim was prop-
erly granted.
AFFIRMED.
5
(...continued)
pendent basis for the action apart from the Human Rights Act
itself.” Welch v. Ill. Sup. Ct., 751 N.E.2d 1187, 1196 (Ill. App.
2001); see 775 ILL. COMP. STAT. 5/8-111(C) (2006).
No. 06-2284 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-14-07