The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1641
NAVREET NANDA,
Plaintiff-Appellee,
v.
GERALD MOSS,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 00 C 4757—Rebecca R. Pallmeyer, Judge.
____________
ARGUED SEPTEMBER 14, 2004—DECIDED JUNE 27, 2005
____________
Before CUDAHY, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Dr. Navreet Nanda sued the
Board of Trustees of the University of Illinois and five other
University officials for discrimination and violation of her
constitutional rights. Dean Gerald Moss, M.D., now appeals
the district court’s decision to deny him qualified immunity
and argues that he is entitled to qualified immunity
because his conduct did not constitute a violation of Dr.
Nanda’s constitutional rights, and because it was not
clearly established that Dean Moss’s concurrence with Dr.
Nanda’s termination violated her equal protection rights.
We disagree and affirm the district court’s decision to deny
Dean Moss qualified immunity.
2 No. 04-1641
I. BACKGROUND1
Dr. Nanda, a woman of Asian and Indian descent,
accepted a tenure track position with the University on May
20, 1996, as an Assistant Professor in the Department of
Microbiology and Immunology (the “Department”) within
the College of Medicine located in Chicago, Illinois. The
Dean of the College of Medicine, Dean Moss, both approved
Dr. Nanda’s area of research and determined that Dr.
Nanda’s research was in line with needs of the Department.
In February 1997, Dean Moss appointed Dr. Prabhakar
Head of the Department, and Dr. Nanda claims that her
problems at the University began with his appointment.
According to Dr. Nanda, Dr. Prabhakar: (1) usurped her
assigned and promised lab space, with the assistance of
Dean Moss who ultimately gave Dr. Prabhakar permission
to take over the promised space; (2) denied Dr. Nanda alter-
native lab space and equipment commensurate with her
research needs; (3) refused to endorse or attend Dr. Nanda’s
student-faculty scholarship group whereas he attended and
endorsed similar groups organized by male faculty mem-
bers; (4) refused to allow Dr. Nanda to teach any course
during her final year of employment; and (5) encouraged
students not to work with Dr. Nanda during her final year.
Sometime before July 1, 1998, Dr. Prabhakar called a
meeting with Dean Moss and members of Dean Moss’s staff
to discuss the propriety of, and procedure for, issuing a
contract termination for Dr. Nanda. As an Assistant
Professor, Dr. Nanda could receive a written “notice of
1
When deciding whether a public official is entitled to qualified
immunity, we simply assume the disputed facts in the light most
favorable to the plaintiff, and then decide, under those facts,
whether the defendant violated any of the plaintiff ’s clearly es-
tablished constitutional rights. Board v. Farnham, 394 F.3d 469,
476 (7th Cir. 2005) (quotes and citations omitted).
No. 04-1641 3
nonreappointment,” or a “terminal contract” from the
University at any time prior to the last year of her appoint-
ment. The common practice at the University was for the
Dean or Department Head to seek the advice of the advi-
sory committee or other appropriate committee before
termination, and the Dean of Faculty Affairs, Kathy Hart,
advised Dr. Prabhakar that he needed to solicit input from
the Faculty Advisory Committee before making such a
recommendation.
However, on July 1, without seeking the advice of the
Faculty Advisory Committee, Dr. Prabhakar recommended
to Dean Moss that Dr. Nanda receive a terminal contract
which would end her employment with the University
effective August 31, 1999. We note that Dr. Nanda was the
first Assistant Professor on the tenure track to receive a
terminal contract without prior input from the Faculty
Advisory Committee.
A. Dean Moss’s Role
It is undisputed that Dean Moss personally never saw Dr.
Prabhakar engage in any of the discriminatory acts alleged
by Dr. Nanda. Dr. Prabhakar, however, could not have fired
Dr. Nanda without Dean Moss’s approval. As a result, Dean
Moss is at the center of the controversy surrounding Dr.
Prabhakar’s recommendation as the only person in position
to ensure the propriety of Dr. Prabhakar’s recommendation
and with the authority to reject Dr. Prabhakar’s recommen-
dation if there was evidence of impropriety.
On July 7, 1998, several faculty members sent a letter to
Dr. Prabhakar challenging his decision to recommend a
terminal contract for Dr. Nanda. The letter asserted that
“no substantive scientific or academic grounds for [his]
decision [existed],” and suggested that “[g]iven the context
of the personality differences between you and Dr. Nanda,
this dismissal could be construed as a gender based action.”
4 No. 04-1641
The faculty members further stated that “[t]he absence of
a stated cause for this action suggests that no clear justifi-
cation can be made.”
Around July 10, 1998, Dean Moss met with a subset of
the authorship who told Dean Moss directly that they be-
lieved the terminal contract was unjust and perhaps based
on Dr. Nanda’s gender. Dean Moss reportedly conceded in
this meeting that he knew it was wrong to issue Dr. Nanda
a terminal contract without prior faculty input, nonetheless
he urged Dr. Nanda’s colleagues to support the decision.
On July 10, 1998, Dr. Nanda sent a letter to Vice Dean
Charles Rice, M.D., with a copy sent to Dean Moss, dis-
puting her termination and stating her strong belief that “a
significant part of [the] decision [to terminate my em-
ployment] is based on gender related issues and factors.”
Around this same time, Dr. Nanda met with Dean Moss and
reiterated these sentiments, as well as her belief that
ethnicity was also a factor in the terminal contract decision.
On July 13, 1998, Dr. Nanda wrote to the Academic
Freedom and Tenure Committee of the UIC Faculty Senate
(“AFTC”), asserting that the terminal contract constituted
a denial of her right to academic freedom, and copies of the
letter were sent to Dean Moss and Dr. Prabhakar. On
July 24, 1998, the chairman of the AFTC, Dr. Eugene F.
Woods, met with Dr. Prabhakar and asked him the reason
for his terminal contract recommendation. According to
Dr. Woods, Dr. Prabhakar first stated that there was no
reason for his recommendation, but then said he wanted to
take the Department in a new research direction.
On July 24, 1998, Dr. Prabhakar met with the
Department faculty concerning Dr. Nanda’s termination.
According to minutes from the meeting, Dr. Prabhakar
acknowledged that he made the decision to recommend a
terminal contract for Dr. Nanda “unilaterally,” explaining
that he chose not to seek approval from the Faculty Advi-
No. 04-1641 5
sory Committee because he believed that the committee
would not agree with his recommendation. One week later
on July 31, 1998, the Faculty Advisory Committee sent
Dr. Prabhakar a memorandum asking him to reverse the
terminal contract recommendation.
Around this same time, Dr. Woods met with Dean Moss
to discuss Dr. Nanda’s terminal contract recommendation.
According to Dr. Woods, Dean Moss first told him that he
had been advised by counsel not to give Dr. Nanda a reason
for the terminal contract, but then told Dr. Woods that her
research did not fit Dr. Prabhakar’s vision for
the Department. Ultimately, the AFTC concluded that
Dr. Nanda’s terminal contract had been issued without due
process and constituted a denial of her academic freedom.
In the AFTC’s view, contrary to Dr. Prabhakar’s assess-
ment, Dr. Nanda’s research was an excellent fit for the
direction of the Department.
Dean Moss also had knowledge, during this time, of
another woman in the Department, Dr. Amy Kenter who,
similar to Dr. Nanda, was experiencing problems with
Dr. Prabhakar.2 On July 8, 1998, Dr. Kenter met with Dean
Moss and advised him of the problems she was having with
Dr. Prabhakar regarding her lab space. She also noted to
Dean Moss that Dr. Nanda had similar problems with Dr.
Prabhakar and suggested that gender may have played a
role in his decision to issue Dr. Nanda a terminal contract.
On July 21, 1998, Dr. Kenter made a formal harassment
complaint to Dean Moss regarding her interactions with Dr.
Prabhakar over lab issues. A week later on July 27, 1998,
Dr. Kenter’s attorney wrote to Dean Moss contending that
Dr. Prabhakar had discriminated against Dr. Kenter on the
2
Dr. Nanda and Dr. Kenter were the only two active female
research scientists in the Department.
6 No. 04-1641
basis of her gender. Nothing in the record indicates that
Dean Moss did anything in response to Dr. Kenter’s
complaints.
Sometime between July 1 and August 31, 1998, Dean
Moss informed the Provost, Elizabeth Hoffman, Ph.D., that
Dr. Nanda should receive a terminal contract. Provost
Hoffman only spoke about the terminal contract recommen-
dation with Dean Moss, and testified in a deposition that
Dean Moss told her that the faculty had met and voted to
uphold the recommendation in August 1998.
B. The University’s Grievance Procedure
Provost Hoffman passed along Dean Moss’s recommenda-
tion to Chancellor David Broski, who then passed it to
President James Stukel, Ph.D. On August 31, 1998, the
Board of Trustees accepted Dr. Prabhakar’s recommen-
dation and issued a terminal contract ending Dr. Nanda’s
employment with the University on August 31, 1999. Pur-
suant to the University’s Grievance Procedures, Dr. Nanda
filed a formal grievance demand with Dean Moss on
September 11, 1998 challenging the terminal contract.
In the grievance, Dr. Nanda argued that Dr. Prabhakar
failed to follow the required departmental process before
issuing his recommendation, and that the recommendation
was based on her gender and ethnicity. On October 2, 1998,
pursuant to the University’s Grievance Procedures, Dean
Moss appointed Rochelle Cohen, Ph.D., then Professor and
Interim Head of the Department of Anatomy and Cell
Biology, to investigate Dr. Nanda’s grievance. On
October 26, 1998, Dr. Cohen issued her report to Dean Moss
stating that she found no evidence of gender or ethnic dis-
crimination by Dr. Prabhakar with respect to the terminal
contract recommendation.
On October 29, 1998, Dean Moss denied Dr. Nanda’s
grievance, and on November 11, 1998, Dr. Nanda appealed
No. 04-1641 7
Dean Moss’s decision to Provost Hoffman. Five days later,
Provost Hoffman appointed Kathleen Knafl, Ph.D., Execu-
tive Associate Dean of the College of Nursing Administra-
tion, as the Hearing Officer to conduct a formal investiga-
tion into Dr. Nanda’s grievance. Dr. Knafl ultimately
concluded that although Dr. Prabhakar’s failure to obtain
advice from the Faculty Advisory Committee before recom-
mending a terminal contract was “counter to the spirit” of
the University statutes, the termination process was in
keeping with the usual practice within the College of
Medicine, and there was no compelling evidence to support
Dr. Nanda’s allegations of gender or ethnic discrimination.
On April 29, 1999, Provost Hoffman informed Dr. Nanda of
her decision to deny the grievance appeal.
Dr. Nanda appealed Provost Hoffman’s decision to
Chancellor Broski, which was denied June 9. Chancellor
Broski reaffirmed Provost Hoffman’s conclusion that
Dr. Prabhakar’s recommendation of a terminal contract was
neither procedurally flawed nor discriminatory. Dr. Nanda
then appealed Chancellor Broski’s decision to President
Stukel. In accordance with University statutes, President
Stukel’s review was limited to determining whether proce-
dural requirements had been met and was not a review of
the merits of the terminal contract recommendation.
President Stukel informed Dr. Nanda that the grievance
proceedings had been conducted in accordance with the
University’s established procedures, and that her appeal
was denied. President Stukel nevertheless chose to extend
Dr. Nanda’s contract for one year until August 31, 2000.
After her termination, Dr. Nanda filed this case alleging
her termination was in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.,
and also alleging that Provost Hoffman, Chancellor Broski,
President Stukel, Dean Moss, and Dr. Prabhakar in their
individual capacities violated her equal protection rights
under 42 U.S.C. § 1983. Defendants moved for summary
8 No. 04-1641
judgment, and the district court concluded that there was
sufficient evidence in the pretrial record to create a genuine
issue of material fact that Dr. Prabhakar violated Dr.
Nanda’s Fourteenth Amendment right to equal protection.
The district court, therefore, denied summary judgment as
to the University and Dr. Prabhakar, but granted summary
judgment on qualified immunity grounds to Provost Eliza-
beth Hoffman, Ph.D., Chancellor David Broski, and Presi-
dent James Stukel, Ph.D. The district court also denied
qualified immunity to Dean Moss and he now appeals the
district court’s ruling.
II. ANALYSIS
Government officials performing discretionary functions
are entitled to qualified immunity from suit unless their
conduct violated “clearly established . . . constitutional
rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A district
court’s denial of a claim of qualified immunity, notwith-
standing the absence of a final judgment, is immediately
appealable as a final decision to the extent that the decision
turns on an issue of law. Board v. Farnham, 394 F.3d 469,
476 (7th Cir. 2005). Thus, on appeal of the denial of quali-
fied immunity, we do not review the district court’s determi-
nation of whether the pretrial record sets forth sufficient
evidence to create a disputed issue of material fact, but
instead only review the legal determination of qualified
immunity based on the pretrial record construed in a light
most favorable to the non-moving party. Id.
We review the legal determination of a defendant’s claim
of qualified immunity de novo, see id. at 476-77 (citations
omitted), and undertake a two-part analysis asking: (1)
whether the facts alleged, “[t]aken in the light most favor-
able to the party asserting the injury, . . . show the officer’s
conduct violated a constitutional right”; and (2) whether the
No. 04-1641 9
right was clearly established at the time of its alleged
violation. Saucier v. Katz, 533 U.S. 194, 201 (2001).
In looking at the facts in a light most favorable to
Dr. Nanda, we find that Dean Moss’s conduct in facilitating
and ratifying Dr. Prabhakar’s recommendation to terminate
Dr. Nanda constituted a violation of Dr. Nanda’s constitu-
tional rights, and that the contours of Dr. Nanda’s constitu-
tional right to be free from gender and ethnic discrimina-
tion in her workplace were clearly established in federal
law at the time in question.
A. Dean Moss’s Alleged Conduct
On appeal, Dean Moss cites Jones v. City of Chicago, 856
F.2d 985, 992 (7th Cir. 1988), for the proposition that there
is no principle of superiors’ liability, either in tort law gen-
erally or in the law of constitutional torts, and argues that
under Jones he is entitled to qualified immunity because,
like his fellow supervisors, he never engaged in any conduct
that violated Dr. Nanda’s constitutional rights. Under
§ 1983, however, supervisory liability can be established if
the conduct causing the constitutional deprivation occurs at
the supervisor’s direction or with the supervisor’s knowledge
and consent. See id. at 992-93 (finding that supervisor
liability for constitutional torts will attach where a super-
visor knows about the alleged conduct and facilitates it,
approves it, condones it, or turns a blind eye for fear of
what he or she might see). Since the facts as construed in a
light most favorable to Dr. Nanda establish that
Dr. Prabhakar could not have fired Dr. Nanda by himself,
but instead needed the assistance of Dean Moss to facilitate
Dr. Nanda’s termination, Dean Moss would not be entitled
to qualified immunity if the facts as construed in a light
most favorable to Dr. Nanda establish that Dean Moss was
deliberately indifferent in facilitating Dr. Prabhakar’s
discriminatory termination. See Anderson v. Cornejo, 355
10 No. 04-1641
F.3d 1021, 1026-27 (7th Cir. 2004) (holding that managers
were entitled to qualified immunity absent evidence that
the managers were deliberately indifferent toward com-
plained of discrimination).
Dean Moss explains that his conduct was limited to
merely supervising the bad actor, Dr. Prabhakar, and
claims that in concurring with Dr. Prabhakar’s recommen-
dation “[a]ll he really knew in July and August of 1998 was
that Prabhakar and Nanda had clashed over administrative
matters such as lab space and teaching assignments.” See
Appellant’s Opening Brief at 20. It appears, however, that
Dean Moss had every reason to question Dr. Prabhakar’s
recommendation, but instead chose not to do so.
In looking at the facts in a light most favorable to
Dr. Nanda, Dean Moss knew that Dr. Prabhakar had not
sought the input from the Faculty Advisory Committee be-
fore making his recommendation to terminate Dr. Nanda.
In addition, Dean Moss heard from several faculty members
who both complained of Dr. Prabhakar’s recommendation,
and argued that Dr. Prabhakar’s recommendation was
based on Dr. Nanda’s race, gender or ethnicity. Moreover,
Dean Moss met with Dr. Kenter about the similar problems
she was having with Dr. Prabhakar, before Dr. Kenter filed
a formal complaint. Dr. Kenter’s attorney also sent Dean
Moss a letter dated July 27, 1998 contending that Dr.
Prabhakar had discriminated against Dr. Kenter on the
basis of her gender. Additionally, Dean Moss received copies
of Dr. Nanda’s letter to Vice Dean Rice disputing her
termination on gender grounds, and a July 13, 1998 letter
Dr. Nanda wrote to the AFTC asserting that the terminal
contract constituted a denial of her right to academic
freedom. Finally, Dean Moss knew that on July 31, 1998,
the Faculty Advisory Committee sent Dr. Prabhakar a
memorandum asking him to reverse the terminal contract
recommendation because he failed to seek its input in
making the recommendation.
No. 04-1641 11
In response to all of these events, Dean Moss chose to
either discredit or completely ignore each of the complaints,
concerns and allegations levied against Dr. Prabhakar and
his recommendation to terminate Dr. Nanda. Indeed, if
Dr. Nanda’s version of the facts is accurate, then Dean
Moss approved Dr. Prabhakar’s recommendation and then
falsely communicated to Provost Hoffman that the faculty
had met and voted to uphold the recommendation.
In defending his role in ratifying and facilitating
Dr. Nanda’s termination, Dean Moss analogizes himself to
the supervisor defendants in Anderson and argues that at
worst he was merely negligent, but not deliberately indif-
ferent, in failing to follow up on the complaints, concerns
and allegations levied against Dr. Prabhakar.
In Anderson, the plaintiffs, 90 American citizens who
were searched at O’Hare Airport, contended that
United States Customs personnel chose them for non-rou-
tine searches because of their race and sex. 355 F.3d at
1022. In reversing the district court’s denial of qualified
immunity, this court held that in the case of one specific
supervisor there was no evidence that the supervisor acted
with deliberate indifference toward the complained-of dis-
crimination where the supervisor in question was charged
with reviewing the complaints of approximately 30,000 pas-
sengers selected for non-routine searches over the course of
a year, and none of the complaints asserted the combination
of race and sex discrimination alleged by plaintiffs. Id. at
1027.
In comparing himself to the defendants in Anderson,
Dean Moss ignores the notice and opportunity he was af-
forded to prevent the violation of Dr. Nanda’s constitutional
rights including: (1) Dr. Nanda’s complaints of discrimina-
tion; (2) the claims of senior faculty within the Department;
(3) the independent investigation done by the AFTC; and (4)
Dr. Kenter’s simultaneous claims of similar treatment at
12 No. 04-1641
the hands of Dr. Prabhakar. In contrast, the supervisor
defendant in Anderson never had any such notice or oppor-
tunity to investigate the alleged discrimination. Id. at
1026-27 (finding that there can be no deliberate indifference
and therefore, no imputation of knowledge where there is
no reason to think that a supervisor suspected that his
subordinates were engaged in discrimination and then tried
to shield them from guilt). As such, this court’s ruling in
Anderson does not help Dean Moss.
Dean Moss also attempts to insulate his behavior with the
fact that he appointed a female department head from
within the College of Medicine to investigate Dr. Nanda’s
claims of discrimination once Dr. Nanda filed a grievance
challenging her termination. Dean Moss holds out the ap-
pointment of Dr. Cohen as a shield to demonstrate that he
did not merely ratify Dr. Prabhakar’s recommendation but
that he investigated these claims and took her claims ser-
iously.
In making this argument, Dean Moss focuses on the
events subsequent to his ratification of Dr. Prabhakar’s rec-
ommendation, but the correct focus of this appeal is Dean
Moss’s role in facilitating Dr. Nanda’s termination between
July 1, 1998, when Dean Moss received Dr. Prabhakar’s
recommendation, and August 31, 1998 when the Board of
Trustees accepted President Stukel’s recommendation to
end Dr. Nanda’s employment. Accordingly, Dean Moss’s
actions after the Board’s acceptance are both too little and
too late to qualify him for immunity from this suit. The facts
as construed in favor of Dr. Nanda suggest that Dean Moss
did not investigate Dr. Nanda’s claims until he was told to
investigate by Provost Hoffman, which was after Dean Moss
had ratified the terminal contract recommendation, after he
had already passed the recommendation on to Provost
Hoffman, after the University set a termination date for Dr.
Nanda, and after Dr. Nanda instituted her formal griev-
ance. Dean Moss both ignored repeated complaints that Dr.
No. 04-1641 13
Prabhakar’s terminal contract recommendation was
motivated by gender and ethnic discrimination, and
overlooked the fact that Dr. Prabhakar made the terminal
contract recommendation without following proper process
and procedure. Accordingly, the facts taken in the light
most favorable to Dr. Nanda establish that Dean Moss was
deliberately indifferent in facilitating Dr. Prabhakar’s
discriminatory termination, and therefore violated Dr.
Nanda’s constitutional rights.
B. Dr. Nanda’s Clearly Established Rights
Having found that Dean Moss’s alleged actions violated
Dr. Nanda’s constitutional rights, Dean Moss would still be
entitled to qualified immunity if Dr. Nanda’s constitutional
rights at issue were not clearly established at the time of
these events. It is the plaintiff’s burden to demonstrate the
existence of a clearly established constitutional right,
Kernats v. O’Sullivan, 35 F.3d 1171, 1176 (7th Cir. 1994),
but in determining whether a constitutional right has been
clearly established, it is not necessary for the particular
violation in question to have been previously held unlawful.
Anderson v. Creighton, 483 U.S. 635, 640 (1987). Instead, a
clearly established constitutional right exists in the absence
of precedent, where “the contours of the right [are] suffi-
ciently clear that a reasonable official would understand
that what he is doing violates that right.” Id. Additionally,
where the constitutional violation is patently obvious, a
plaintiff may not be required to present the court with any
analogous cases, as widespread compliance with a clearly
apparent law may have prevented the issue from previously
being litigated. See Kernats, 35 F.3d at 1176.
It has been plain in this circuit for quite some time that
arbitrary gender-based discrimination, including discrim-
ination in an educational setting, violates the equal pro-
tection clause. In 1986, we held that sexual harassment
14 No. 04-1641
constitutes sex discrimination in violation of the equal
protection clause. Bohen v. City of East Chicago, Indiana,
799 F.2d 1180, 1185 (7th Cir. 1986). Later, in Nabozny v.
Podlesny, 92 F.3d 446, 455 (7th Cir. 1996), we denied qua-
lified immunity in a case claiming that school officials had
violated the plaintiff’s right to equal protection through
gender discrimination. The Nabozny case, and the Supreme
Court cases it relies upon, Reed v. Reed, 404 U.S. 71 (1971),
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), and Missis-
sippi University for Women v. Hogan, 458 U.S. 718 (1982)
established the principle that schools are required to give
male and female students equivalent levels of protection.
Nabozny, 92 F.3d at 456.
Dean Moss argues that it was not clearly established
in July and August 1998 that his concurrence with
Dr. Prabhakar’s recommendation would violate Dr. Nanda’s
civil rights. This argument, however, does not completely
capture the extent of Dean Moss’s conduct under scrutiny
on this appeal. We find that a reasonable dean or university
administrator was on notice as of 1998 that it would be a
violation of federal law to ratify a recommendation to
terminate a female professor without investigation into
several allegations of gender and ethnic discrimination sur-
rounding the recommendation, and then to falsely report
that the recommendation was made with the approval of
faculty and an advisory committee.
CONCLUSION
For all the foregoing reasons, the decision of the district
court is AFFIRMED.
No. 04-1641 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-27-05