Ray Haynes v. Indiana University

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-2890

RAY K. HAYNES,

Plaintiff-Appellant,

v.

INDIANA UNIVERSITY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:15-cv-01717-LJM — Larry J. McKinney, Judge.

____________________

ARGUED APRIL 11, 2018 — DECIDED SEPTEMBER 4, 2018

____________________

Before BAUER, SYKES, and BARRETT, Circuit Judges.

SYKES, Circuit Judge. Ray Haynes was employed as an as-

sistant professor in the Department of Education at Indiana

University. At the end of his six-year probationary contract,

he lost his bid for tenure. Haynes, who is black, alleges that

the University denied his tenure application because of his

race in violation of federal law. The district judge entered

summary judgment for the University and we affirm. The

judge’s evidentiary rulings were sound, and the record does

2 No. 17-2890

not support an inference that the University denied tenure

because of Haynes’s race.

I. Background

In 2008 Indiana University hired Haynes as an assistant

professor in the Instruction Systems Technology Department

of the School of Education. Roughly three-quarters of

Haynes’s salary was financed by the Strategic Recruitment

Fund, which the University established to “facilitate the

recruitment of underrepresented minorities and women into

the professoriate.” Haynes was offered a six-year probation-

ary contract, at the end of which the University would

decide if he qualified for tenure.

Achieving tenure at Indiana University is a multistep

process fraught with nuanced and highly contextualized

value judgments. The University’s tenure guidelines provide

that “[d]ecisions about tenure … are reached through the

comprehensive and rigorous peer review of achievements

and promise.” More specifically, a candidate is evaluated

across three dimensions: research, teaching, and service. He

must be “excellent” in at least one area of his choosing and

“satisfactory” in the other two.

After making this selection, the candidate formally be-

gins the tenure application process. He first assembles a

dossier that includes his curriculum vitae, a personal state-

ment, and a list of twelve proposed external reviewers. The

candidate and the University together select six of these

reviewers to write letters evaluating the candidate’s applica-

tion. Once completed, these letters are submitted with the

rest of the dossier for several levels of faculty review. First, a

committee within the candidate’s department considers the

No. 17-2890 3

application and issues a recommendation. Its findings and

conclusions are then passed along to a school-wide com-

mittee, which does the same. Finally, with the candidate’s

dossier and two committee reports in hand, the University’s

Tenure Advisory Committee makes a recommendation to the

Vice Provost, who in turn issues a tenure decision and

submits it for final approval by the Provost, President, and

Board of Trustees.

This case centers on Haynes’s experience with this wind-

ing tenure process. In April 2013 Haynes submitted his

dossier to the School of Education, which was responsible

for reaching out to his proposed external reviewers. Surpris-

ingly, only one of Haynes’s twelve potential recommenders

agreed to evaluate his application. This left Haynes to seek

out alternates. Thomas Brush, the chair of his department,

offered a few suggestions, and Haynes put forward a few

more of his own. Together Brush and Haynes eventually

secured six reviewers willing to write evaluations, three

proposed by Haynes and three he adopted on Brush’s

recommendation.

The letters were largely positive, albeit with a notable ex-

ception. Patricia Hardré, one of Brush’s proposed reviewers,

put Haynes’s “overall research performance in a gr[ay] area

of clearly satisfactory[] but not clearly excellent.” Her main

concern was that Haynes’s research was “not as rigorous in

methods, nor as high-quality in venues, as most candidates”

she had reviewed from peer institutions. Hardré also opined

that Haynes offered nothing “new” beyond his “unique

specialization of ‘inclusion’ and his identity as an African-

American.” She again commented on Haynes’s race later in

her evaluation, this time saying she regretted that she was

4 No. 17-2890

unable to “support and endorse a colleague who is a mem-

ber of an underrepresented minority.”

These critiques notwithstanding, Haynes took his com-

pleted dossier and embarked on the University’s tiered

review process. Because he selected research as his perfor-

mance area of excellence, he needed to demonstrate that he

was “beginning to establish a national and/or international

reputation as an original contributor through research.”

Haynes also had to prove that his teaching and service to the

University community were satisfactory.

Haynes got off to a good start with his department’s ten-

ure committee, which voted 4–2 in his favor. Brush support-

ed the committee’s recommendation and drafted a summary

of its findings to be included with Haynes’s dossier. He

remarked that Haynes’s scholarship could “have a huge

impact in K–12, higher education, and business and industry

settings.” Despite Hardré’s concerns, he also noted that

several of “Haynes’[s] peer-reviewed publications [are] in

well-respected journals.” Finally, Brush compiled a series of

student reviews that favorably commented on Haynes’s

teaching performance.

Haynes’s dossier was then forwarded to Krista

Glazewski who presented his case to the School of Educa-

tion’s tenure committee. There Haynes did not fare as well

as he might have hoped. The committee voted 6–3 against

tenure, finding Haynes’s research to be less than excellent

and his teaching to be unsatisfactory. Gerardo Gonzalez, the

school’s dean, wrote a memorandum adopting and express-

ing the committee’s concerns. In it he explained that “the

committee questioned the extent of Dr. Haynes’[s] impact

based on low citation numbers and low numbers of publica-

No. 17-2890 5

tions in high-quality journals.” As for teaching, the com-

mittee noted that Haynes’s “evaluations ha[d] been mixed[]

and particularly low in the online courses.” Gonzalez con-

tinued: Haynes failed to show “significant improvement

over the years[,] and comments from some students indicat-

ed that Dr. Haynes sometimes [was] unresponsive to emails

and questions about course assignments.” In December 2013

Gonzalez advised Haynes that the School of Education

would recommend against tenure.

Things only got worse for Haynes at the university-wide

Tenure Advisory Committee. For many of the reasons cited

by the School of Education, the committee voted unanimous-

ly against tenure in a 9–0 vote. All nine members concluded

that Haynes’s research was not excellent, and eight deter-

mined that his teaching was unsatisfactory. The University’s

Vice Provost adopted these conclusions and informed

Haynes on March 26, 2014, that tenure was denied. All in all,

27 faculty members voted on Haynes’s application, with 18

finding his teaching unsatisfactory and 19 concluding that

his research was not excellent.

Haynes vigorously contested his tenure decision. He be-

gan with several layers of academic review, then lodged a

complaint with the Equal Employment Opportunity Com-

mission, and finally filed suit in federal court against the

University and several of its administrators in their individ-

ual and official capacities. (We refer to the defendants collec-

tively as “the University” unless the context requires

otherwise.) Haynes alleged that his application for tenure

was rejected because of his race in violation of the Civil

Rights Act of 1866, 42 U.S.C. § 1981, and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Haynes sought

6 No. 17-2890

several forms of injunctive relief, including reinstatement,

and monetary damages for lost pay and other injuries.

The case proceeded through discovery, and the Universi-

ty eventually moved for summary judgment. Several issues

in this appeal involve the ensuing motions filed in the

district court, which requires us to dive into a bit of proce-

dural minutiae.

Haynes submitted a declaration from Laura Perna, his

expert on academic tenure, with his response to the Univer-

sity’s motion. The University moved to strike the declara-

tion, both in its reply brief and by adjoining motion, arguing

that the expert’s opinion did not meet the requirements of

Rule 702 of the Federal Rules of Evidence and Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Haynes asked for leave to file a surreply on the admissi-

bility of his expert’s declaration. He also sought to submit a

lengthier report from Perna and an additional expert report

from Anthony Greenwald on the subject of implicit bias.

Haynes argued that these additional materials were relevant

to the Daubert determination. He filed a separate motion for

leave to supplement the record with these reports because he

was presenting them after summary-judgment briefing had

concluded. He said the reports were late because Perna and

Greenwald couldn’t prepare them in time to comply with

the court’s briefing schedule.

The judge excluded Perna’s expert declaration and de-

clined to accept the additional expert reports. Applying

Rule 702 and Daubert, the judge concluded that the opinions

in Perna’s declaration were inadmissible because she did not

rely on any specialized knowledge and her testimony would

No. 17-2890 7

not assist the trier of fact. As for the late expert reports, the

judge rejected the explanation for their tardiness because

Haynes had never before suggested that the court’s briefing

schedule for dispositive motions might interfere with the

preparation of any expert reports. In fact, he had sought and

obtained several extensions of time without raising this

concern.

With these evidentiary disputes out of the way, the judge

turned to the motion for summary judgment and ruled that

Haynes’s claims failed as a matter of law. The judge identi-

fied a number of flaws in Haynes’s case, but the primary

basis for the decision was the lack of record support for

Haynes’s claim that the University denied his tenure appli-

cation because of his race.

II. Discussion

Haynes asks us to review the summary judgment and the

evidentiary rulings that preceded it. We review a summary

judgment de novo, Manley v. Law, 889 F.3d 885, 889 (7th Cir.

2018), and we set aside the district court’s evidentiary rul-

ings only for an abuse of discretion, see Lewis v. CITGO

Petroleum Corp., 561 F.3d 698, 704–05 (7th Cir. 2009) (expert

testimony); Stinnett v. Iron Works Gym/Exec. Health Spa, Inc.,

301 F.3d 610, 613 (7th Cir. 2002) (motions to strike); Vance v.

Ball State Univ., 646 F.3d 461, 469 (7th Cir. 2011) (motions to

supplement).

We think the judge made the right call on all fronts. Be-

fore we turn to these rulings, however, we pause to deter-

mine which of Haynes’s claims are properly before us. The

University argues that the Title VII claim fails on procedural

8 No. 17-2890

grounds and that part of the § 1981 claim is barred by sover-

eign immunity.

A. Title VII Claim

A Title VII plaintiff must first file a complaint with the

Equal Employment Opportunity Commission within

300 days of “when the defendant has taken the action that

injures the plaintiff.” Sharp v. United Airlines, Inc., 236 F.3d

368, 372 (7th Cir. 2001). Haynes’s complaint was untimely

under this rule. The Vice Provost notified Haynes on

March 26, 2014, of the University’s decision to deny tenure,

so the deadline to lodge a complaint with the EEOC was

January 20, 2015. He waited until April 10, 2015, to file his

EEOC complaint.

Haynes asks us to apply equitable tolling to forgive the

late complaint. We can do so 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 em-

ployment action—here the tenure decision. Hentosh v.

Herman M. Finch Univ. of Health Scis./The Chi. Med. Sch.,

167 F.3d 1170, 1175 (7th Cir. 1999) (internal quotation marks

omitted). Even if this standard is satisfied, we will not grant

“an automatic extension of indefinite duration.” Id. The

plaintiff is not entitled to a renewed 300-day window even

when tolling is justified. See Thelen v. Marc’s Big Boy Corp.,

64 F.3d 264, 268 (7th Cir. 1995). Instead, tolling is appropriate

only for a length of time within which it would have been

reasonable to file a complaint. See Hentosh, 167 F.3d at 1175.

Even if we assume tolling is justified here (and we’re

skeptical), Haynes waited far too long. He alleged in his

complaint that “on or around October 24, 2014, was the first

No. 17-2890 9

time that [he] suspected or was aware of racial discrimina-

tion against him.” Absent amendment, that amounts to a

binding judicial admission, and it cannot be controverted on

appeal. See Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th

Cir. 1995). Haynes therefore knew he had a possible discrim-

ination claim on that date at the latest. This leaves us to ask

whether three months—from October 24, 2014, to the origi-

nal deadline—was enough time for Haynes to file an EEOC

complaint. It clearly was. We have remarked that adminis-

trative complaints should be filed “within days, and at most

weeks,” of discovering a possible discrimination claim.

Thelen, 64 F.3d at 268. Haynes makes no effort to explain

why he needed more time. The Title VII claim fails for lack

of a timely EEOC complaint.

B. § 1981 Claim

With no Title VII claim left, Haynes’s suit rests entirely

on § 1981. This venerable civil-rights statute gives “[a]ll

persons within the jurisdiction of the United States” the

same right “to make and enforce contracts … as is enjoyed

by white citizens.” 42 U.S.C. § 1981(a). Haynes sued the

University, its Board of Trustees, and several of its adminis-

trators in their individual and official capacities seeking

various forms of injunctive relief and damages for violating

his rights under this provision.

Everyone agrees that the claim for injunctive relief can

proceed against the official-capacity defendants. The

University argues that sovereign immunity completely bars

Haynes’s action for monetary damages. This is clearly

correct with respect to the University and the Board of

Trustees. A state and its agencies cannot be subject to a

federal suit without the state’s consent, N. Ins. Co. of N.Y. v.

10 No. 17-2890

Chatham County, 547 U.S. 189, 193 (2006), and this bar applies

with full force to claims under § 1981, Rucker v. Higher Educ.

Aids Bd., 669 F.2d 1179, 1184 (7th Cir. 1982). The University

and its Board of Trustees are state agencies for sovereign-

immunity purposes, so Haynes cannot maintain an action

for damages against them. Peirick v. Ind. Univ.–Purdue Univ.

Indianapolis Athletics Dep't, 510 F.3d 681, 695 (7th Cir. 2007).

Haynes cannot pursue a damages action against the

University administrators either. A plaintiff cannot bring a

claim for damages against state personnel in their official

capacities. See Nelson v. Miller, 570 F.3d 868, 883 (7th Cir.

2009). Neither can he seek monetary relief from state em-

ployees in their individual capacities if the suit “demonstra-

bly has the identical effect as a suit against the state.” Luder

v. Endicott, 253 F.3d 1020, 1023 (7th Cir. 2001) (emphasis

omitted). That is to say, sovereign immunity bars individual-

capacity claims for damages whenever “[t]he money will

flow from the state treasury to the plaintiff[].” Id. at 1024.

Applying this rule can be a knotty and fact-bound in-

quiry, but clear precedent guides us here. In Omosegbon v.

Wells, 335 F.3d 668 (7th Cir. 2003), a junior professor brought

an action for damages and injunctive relief against a number

of her supervisors in their individual capacities after she was

fired by Indiana State University. We held that sovereign

immunity barred her claim for damages for alleged federal

constitutional violations. We found it “inescapable that any

resulting judgment will be paid by the state” because the

professor sought “backpay and other forms of monetary

compensation based on an employment contract.” Id. at 673.

We also noted that the individual defendants “were not even

parties to the contract in their individual capacity.” Id.

No. 17-2890 11

This case is materially the same. Most importantly,

Haynes seeks monetary relief for an injury relating to his

employment with Indiana University. As in Omosegbon, the

University administrators were not parties to Haynes’s

employment contract in their individual capacities. We have

no reason to believe that they, rather than the University,

would foot the bill for a resulting judgment. Sovereign

immunity therefore defeats Haynes’s damages action against

the University administrators, both in their individual and

official capacities. That leaves us with one claim for review: a

§ 1981 action for various forms of injunctive relief.

C. Evidentiary Rulings

We have one more issue to resolve before turning to the

merits. Haynes argues that the judge incorrectly excluded

his three proffered expert reports: the Perna declaration, the

Perna report, and the Greenwald report.

Perna’s initial declaration offered two opinions: the

University granted tenure to an equally qualified white

woman the year before it denied Haynes’s application, and

“various aspects of [Haynes’s] promotion and tenure process

were not appropriately executed.” The judge properly

excluded this proposed testimony. Rule 702 permits a quali-

fied expert to testify to “specialized knowledge” if it “will

help the trier of fact to understand the evidence or to deter-

mine a fact in issue.” The Perna declaration fell short on both

grounds.

First, Perna lacked the specialized knowledge necessary

for an opinion on the relative merits of Haynes’s tenure

application as compared to anyone else’s. Perna specifically

acknowledged that she had no “expert[ise] in … Haynes’[s]

12 No. 17-2890

content area.” In other words, she disclaimed the only

specialized knowledge that would qualify her to offer an

opinion on Haynes’s fitness for tenure. Her analysis be-

trayed as much. Perna drew her sweeping conclusion from

the simple fact that Haynes and the proposed white female

comparator had similar publication rates. This runs contrary

to the University’s stated tenure guidelines, which stress that

a candidate’s research acumen “cannot be fully captured by

the count of publications.” It also doesn’t help the trier of

fact; a layperson can easily tally up the number of articles

published.

Similarly, the other opinion proffered in Perna’s initial

declaration—that “various aspects” of Haynes’s tenure

process were poorly executed—did not rest on any special-

ized knowledge. Rather than chronicle the University’s

procedure and then compare it to what she believes is the

academic norm, Perna focused myopically on Haynes’s

external reviewers, and even then her “analysis” is little

more than a series of quotations from the record. She point-

ed to certain University personnel who expressed concern

with the “probative value” of Haynes’s external recom-

menders, only to respond with a quote from his mentor who

admitted she “dropped the ball on external reviewers.” This

implies at most that some at the University recognized a

problem with one or more of Haynes’s external reviewers.

At no point did Perna bring her own specialized knowledge

to bear and explain the significance of these statements. In

effect, Perna’s declaration merely flags certain record evi-

dence for the fact-finder’s consideration. That doesn’t assist

the fact-finder in understanding the evidence.

No. 17-2890 13

The judge also appropriately excluded Perna’s and

Greenwald’s formal expert reports. Haynes points to noth-

ing in Perna’s more complete report that remedies the

admissibility concerns with her initial declaration, so we’ll

assume that’s because there’s nothing to find. Greenwald’s

report addresses the possibility of implicit racial bias, but

unintentional discrimination is not cognizable under § 1981.

See, e.g., Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 669 (7th Cir.

1996) (“To prevail under 42 U.S.C. § 1981, a plaintiff ulti-

mately must prove that he has been a victim of intentional

discrimination.”).

Finally, even if the Perna and Greenwald reports were

otherwise admissible, the judge did not abuse his discretion

in declining to allow Haynes to add them to the record after

summary-judgment briefing had ended. The judge was

motivated by an entirely reasonable concern: he did not

want Haynes to introduce new evidence without letting the

University respond. And as we’ve noted, Haynes never

alerted the judge to any problems his experts had in meeting

the dispositive-motions deadline until after briefing was

complete. Indeed, he earlier sought four extensions of time,

requested further discovery under Rule 56(d) of the Federal

Rules of Civil Procedure, and moved to enlarge time for

expert discovery without once suggesting that the expert

reports wouldn’t be ready in time for a summary-judgment

motion.

Haynes nonetheless asks us to excuse his failure to raise

the issue earlier. He claims it would have been futile to

request more time because the magistrate judge’s scheduling

order instructed the parties “not [to] expect to receive exten-

sions of their deadlines … that would threaten the ability to

14 No. 17-2890

have the [summary-judgment] motion … fully briefed by

May 26, 2017.” We don’t read this as absolutely foreclosing

any extension requests. More importantly, it’s not an excuse

for belatedly asking to supplement the record with expert

reports after summary-judgment briefing is complete.

D. Merits

At last we arrive at the merits. There are several ways to

present a claim of racial discrimination, but we have recently

explained that the inquiry can be distilled into a single rule:

The plaintiff’s case may proceed to trial only if “the evidence

would permit a reasonable factfinder to conclude that the

plaintiff’s race … caused the discharge or other adverse

employment action.” Ortiz v. Werner Enters., Inc., 834 F.3d

760, 765 (7th Cir. 2016).

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 commit-

tees.” Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 815 (7th

Cir. 2007) (quotation marks omitted). Scholars, not courts,

“are in the best position to make the highly subjective judg-

ments related with the review of scholarship and university

service.” Farrell v. Butler Univ., 421 F.3d 609, 616 (7th Cir.

2005). 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.

The structure of the tenure process stands as an addition-

al obstacle to a successful claim. Because a plaintiff must

demonstrate that his race precipitated an “adverse employ-

No. 17-2890 15

ment action,” Ortiz, 834 F.3d at 765 (emphasis added), our

inquiry centers on the motivations of the ultimate decision-

makers. With tenure this analysis is unusually complex.

Several “independent and University-wide committees”

conduct “numerous layers of review,” and “the causal

connection between any possible discriminatory motive of a

subordinate participant … and the ultimate tenure decision

is weak or nonexistent.” Adelman-Reyes v. Saint Xavier Univ.,

500 F.3d 662, 667 (7th Cir. 2007) (quotation marks omitted).

Thus a plaintiff needs compelling evidence that “clear

discrimination” pervasively infected the final tenure deci-

sion. Farrell, 421 F.3d at 609.

This case is not a close one under these standards. In fact,

we need not rely much on the finer points of academic

tenure and its intersection with antidiscrimination law.

Haynes’s claim fails for the simple reason that he lacks any

evidence to suggest that the University denied tenure be-

cause he is black.

The bulk of Haynes’s case focuses on his allegations of

chicanery during the University’s review of his tenure

application. For example, he contends that Brush, the de-

partment chair, recommended critical and unqualified

external reviewers, wrote the report of his committee’s

findings in a way that would make support for his candida-

cy look more tepid, and expressed animosity toward him

both in person and in correspondence with other faculty

members. He also alleges that Glazewski and Gonzalez, who

took the lead when the process moved to the School of

Education, engaged in similar behavior. Even if we credit

these assertions, there remains a simple and fatal flaw.

Haynes has no evidence that any of these people sought to

16 No. 17-2890

sabotage him because of his race. He must base the core of

his claim on something other than bald speculation. See

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (hold-

ing that the employee bears the burden to prove that “dis-

crimination was the real reason” behind an adverse action)

(emphasis added).

Haynes next urges us to consider certain indicia of his

performance as an assistant professor: he once obtained a

research grant, won a teaching award, and earned an “ex-

emplary” performance review several months before tenure

was denied. To Haynes’s mind these accolades show that the

University must have acted out of racial animus because he

was otherwise qualified for tenure. This argument is twice

unsound. Again Haynes assumes racism with no proof. And

as important, Haynes’s argument rests on a premise we

cannot entertain. To prove pretext he must first prove that

he was worthy of tenure. But as we’ve just explained, we do

not sit as an academic review board and “second-guess the

expert decisions of faculty committees.” Sun, 473 F.3d at 815.

Haynes must do more than ask us to question the academic

judgment of the 19 faculty members who decided he was

unqualified for tenure.

Haynes’s remaining evidence likewise fails to establish

that racial bias motived the University’s tenure decision. He

cites the fact that the School of Education has never offered

tenure to a black man. That’s beside the point. A § 1981

claim “reaches only intentional discrimination” against the

particular plaintiff, Gen. Bldg. Contractors Ass’n, Inc. v.

Pennsylvania, 458 U.S. 375, 396 (1982), and the University’s

track record says nothing about how it treated Haynes. Next,

Haynes was hired through a minority-recruitment initiative,

No. 17-2890 17

which he says is evidence that the University needed to

address a pervasive bias problem. That can’t possibly be

right. If anything it shows that the University sought to

recruit and retain minority scholars, not turn them away.

Finally, Haynes argues that Hardré’s letter evinced un-

mistakable racial bias that tainted the University’s entire

review. We disagree on both scores. Hardré cited Haynes’s

race as a factor in his favor; she lamented the fact that she

could not “support and endorse a colleague who is a mem-

ber of an underrepresented minority.” But even if this

comment were somehow problematic, there is little evidence

that it poisoned the final tenure decision. Gonzalez men-

tioned the letter in his summary of the School of Education’s

findings, but Brush explained why its conclusions were

unwarranted when he offered the departmental review. All

of the scholars who had a role in this decision could weigh

the letter as they saw fit.

In sum, the sole claim preserved in this case fails for lack

of evidentiary support. Haynes cannot proceed to trial on a

claim of racial discrimination without any evidence that the

University discriminated against him because of his race.

AFFIRMED.