Petition for Writ of Certiorari — Chen v. Northwestern University (No. 05-1393)

3

2) Neither party filed any motion for alteration

of judgment.

3) Notice of appeal was filed on March 18, 2005-

4) The appeal was resulted from a final judgment

that resolved all claims involving all parties.

5) There had been no prior appellate proceedings

in this case.

If. Facts Concerning the Case

Only facts relevant to the questions raised to this Court

are stated.

a. Chen’s Employment at NU

Petitioner Fiona Feng Chen (Chen) is a former employee,

Technical Software Specialist, of Northwestern University -

(NU) from September 8, 1999 to November 29, 2001 &

Page Ila, Chen Br. 2-3. Chen was born on 6/29/1955, in

Taiwan, with race of Asian and country of origin of Pacific

'Chen’s official termination was in January 2002 due to the

payroll procedure. Pl. Resp., page 4.

* The statement refers to the court opinions attached by page

numbers such as, | la, 20a. The Brief submitted to the Court of

Appeals for the Seventh Circuit is referred to as Chen Br.

Documents submitted before the District Court are referred to as

P). For example, Plaintiff's Memorandum of Law is referred to as

Pls Memo, Plaintiffs LR 56.1(a) Statement of Additional Facts

is referred to as Pl.’s Stat; Plaintiff's Response to Defendant's

Local Statements ts referred to as Pl.’s Resp. Chen’s Deposition

is referred to as Chen Dep. and Chen's A ffidavit is referred to as

Chen's Aff. Defendant's documents are referred to as NU.

Plaintiffs appendices in the original submission are in Tab 1, 2,

3, etc. and Defendant’s appendices are in Tab A, B, C, ete. When

it is referred to as Rec., e.g., Ree. #1, it is the number of Records

filed with the District Court.

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Asian. Chen Memo, page | 1. Chen has a Ph.D. with

specialties in Information Systems and Computer

Applications. Chen Aff., page 9.

Chen went to NU to take courses in Accounting to

become a CPA for an expatriate position overseas. Chen

interviewed for an Accounting Assistant position with NU’s

Office of Clinical Research and Training (ORCT) in April

2000. She did not get that position. In August 2000, OCRT

asked Chen to interview for another position. Chen Br. 2-3.

Chen’s job description and classification were drafted

after she was interviewed by the Director of OCRT, Thomas

J. Schnitzer, and Associate Director, Sheri Lindsay, and HR

consultant, Val Campbell. Chen Br., page 3-4. Chen was

classified as non-exempt with an hourly wage, while white,

younger employees performed similar job functions on her

job description, hired after her, were classified as exempt

and paid higher than Chen. Pl.’s Memo, page 13.

Chen attested that during her interviews, other than her

appearance of cultural traces and characters and age, there

was no other reasonable explanation for NU to give her less

favorable terms of employment. PI.’s Memo, page 4.

Chen was promised of job reclassification on the date

of hire, which never came true until Chen’s termination.

Pl.’s Memo, page 13. Chen’s immediate supervisor, Carol J.

Nielsen, admitted during discovery that Chen’s Information

Center task was beyond Chen’s job description. Chen Br.,

page 11. Chen also financially closed out clinical studies,

which was also not on her job description. Nielsen used to

do this task. Chen Br. 5.

Nielsen noted,

Dr. Schnitzer wanted someone who could do

everything and somewhat conveyed that to Fiona. . . So

not fully doing job description — our issue not hers.

Possible that Infor Center is beyond job description. . .

Is she doing work that is outside the scope of her job

description? Should the jeb description she holds, have

more pay? Nielsen Dep., pages 90, 91 — 93; PI’s Stat.,

page 21; PI’s Memo, page 12.

Nielsen discussed with HR personnel about a

comparable pay issue for Chen but did not take any action.

Chen stated that she requested for job and pay

reclassifications at NU from March 2000 to September 2001

for 17 times. /d., page 12, 13.

NU has never trained its employees employment

discrimination laws. PI's Stat., pages 32, 33, 35.

Schintzer intended to hire Chen to design and

implement the entire information system for OCRT. He

admitted in deposition during the discovery stage that he did

not tell Chen his intension in Chen’s job interview. Chen

Br., page 3.

Chen sat by the hallway while all white employees,

exempt or non-exempt, hired before and after her, had office

spaces. Chen Br., page 14. Chen requested for an office

space in vain while younger and white employees started

with office spaces without ever requesting for them. Chen

Br., pages 6, 11.

In June 2000, Niclsen gave Chen her first evaluation.

During the Discovery stage, Niclsen provided document and

testified that she considered Chen’s language a cultural

barrier in this evaluation. Pl.’s Stat., page 8. Nielsen told

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Chen in June 2000 that Chen did an excellent job but she

gave her fours out of five. /d., page 9. Chen asked for an

example for a 5. Nielsen did not tell her. /d, page 9. Nielsen,

however, marked on her own evaluation notes, “partially a

culture barrier’. Nielsen Dep., pages 77-79. She did not tell

Chen about this note. Nielsen Dep., page 79. Nielsen

considered Chen’s “cultural barrier” is the language issue.

Ib, pages 79-80. Nielsen said that it was like Chen wrote

“nodding, k-n-o-t-t-i-n-g. Someone is nodding rather than n-

o-d-d-i-n-g” in email. /b., page 80.

Chen reported computer and mouse problems since

September 1999. Her computer could not hold two

programs open at the same time. Chen had to move the

mouse for six to seven times in order to click and point.

Chen brought in her own mouse to reduce the move to five

to six times in order to click and point. Chen Br., pages 4, 5S.

Nielsen and Schnitzer did not replace the computer nor

mouse even after Chen reported physical discomfort caused

by the computer on 7/5/2000. Pl.’s Stat, page 28; Pl.’s

Memo, page 5. Younger and white employees were

provided with computers without problems. Chen Br., pages

6, 11. In August 2000, Chen’s hands developed Carpal

Tunnel Syndrome. Chen Br., page 8.

Chen reported Worker’s Comp. Nielsen was not

pleased. She said, “Now they are coming to invest us all.”

Id. On 9/6/2000, Nielsen told Chen, “Fiona, if you cannot do

the work, you are of no use to us any more.” Pl.’s Resp.,

page 23. On 9/14/2000, Ray Andre of Risk Management

took Chen off for worker’s comp. Andre would like to find

Chen work elsewhere. Nielsen noted, “Express concern

about her working for other depts. For more than 2 weeks at

our expense”. P].’s Res., page 21.

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On 11/1/2000, Nielsen noted a discussion with Andre.

She wanted Chen to back to her job or fill the position. Pl.’s

Stat., page 29. On 11/6/2000, Chen returned to work. PI.’s

Resp., page 22. She was in pain but she followed the

doctor's order to work. /d., page 21. On 11/15/2000, Andre

told Nielsen it was ’Fine with Rey-if Fiona not a help—-

Okay that she not be here at work after Friday. Hasn’t gotten

any better” Pl.’s Stat., page 30. Andre closed Chen’s case on

November 16, 2000. Lindsay sent Chen home without pay

on November 17, 2000. Chen worked for 23 days between

August 3 and November 17, 2000. PI.’s Res., page 19.

On 12/4/2000, Matthew Bowers, HR consultant (Miller

Dep., page 61), his supervisor, Melissa Durst and Nielsen

discussed to let Chen to come in work “even if cannot do

job”. Chen would be written up every day for disciplinary

action and to eliminate Chen’s position. PI.’s Stat., page 30.

On 12/5/2000, Nielsen noted for Chen to do regular duties

without restrictions. “If she won't do, let Matt know. Will

write up/Disciplinay . . . . 3 day no call/can terminate.” /bid.

On the same day, Bowers sent Chen a letter to request

Chen to apply for FMLA (Family Medical Leave Act) for

her “own serious health condition”. PI.’s Res., page 25.

Chen was back to work on 12/6/2000 (Chen Aff., page 16)

and given a new set of job duties to perform regular

computer duties. //., page 17. Bowers told Chen without

FMLA, NU could change her position to part time or cancel

the position. PI.’s Res., page 25. In response to Bowers’

request, on 12/20/2000, Chen handed in FMLA application

and applied for other positions which may possibly have

secretarial assistance. /hidd.

On 1/23/2001, Bowers called an ADA meeting with

Chicago HR director, Rita Winters, NU EEOC Director,

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Michael Powell, Durst, Operations Consultant of the Office

of Vice President of Research, Anne McNicholl, Nielsen

and Chen. Chen Br., page 10.

During the mecting, Powell said that if necessary, the

employee would be removed from her position. Chen in

fear, requested in the meeting and in wnting that Worker’s

Comp to be applied and not ADA if it was not ADA. Ibid.

Additional ADA meetings were held on 3/8, 3/16,

3/20, and 4/27/2001 with the same NU staff, without Chen.

Id., page 11. Powell sent Chen a letter on 3/2/01. He

rejected Chen’s request for job transfers and notified Chen

his decision that she could not perform her job function of

data entry. He requested Chen to reply by March 14, 2001.

Chen replied on 3/10/2001 to explain that data entry was

never her job function. She also reminded Powell of her

request for trackball mouse and ergonomically designed

keyboard. /bid.

Chen’s physician prescribed on 2/13/2001 the trackball

mouse and ergonomic designed keyboard for Chen to start

working on computer keyboard for half an hour per day. /d.,

page 10. Nielsen did not respond until 4/16/2001. When she

did, she gave Chen that afternoon off to go by taxi to get the

equipments. /d., page 11.

During this period, Chen nevertheless helped the

Accounting Assistant build several Microsoft Access

databases, without Chen ever touching the keyboard. Chen

Dep., Ex. 15, pages 1-2. This contemporary memo dated

March 10, 2001, from Chen to Powell described in detail

Chen’s tasks performed at OCRT and her lacking of a valid

job description. The document was provided by NU to be

authenticated by Chen during her deposition. There is no

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record that anyone has ever disagreed with any part of this

memo. The District Court judge erroneously regarded the

document as a “self-serving” statement. Page 42a.

Schnitzer perceived Chen unable to continue the

Information Center project due to Chen’s physical condition

of pain in her hands and body. P1.’s Stat., page 23. He

assumed that NU had made a decision to approve Chen’s

disability. He decided to outsource the Information Center

project. Chen Br., page 11.

On 5/8/01, Chen’s physician prescribed two hours on

keyboard and “work 2 hours, then 20-minute break” PI.’s

Res., page 32.

On May 9, 2001, Nielsen and Schnitzer met with Chen.

[d., page 33. Schnitzer told Chen, “If you cannot do the

work, you should look for another job. Work part-time.”

Pl.’s, Res., page 34. Nielsen and Schnitzer told Chen that

the Information Center is no longer her job. PI.’s Stat., page

23. They gave Chen a list of “Alternative job duties”. PI.’s

Res., page 33, Chen Aff., pages 16-17. They required Chen

“to do your job the eight hours with no breaks.” Pl.s Res.,

page 33. Chen requested to be put on the Information Center

project team. Nielsen and Schnitzer never replied. Pl.’s

Stat., page 24.

NU never accommodated Chen physician’s

prescription, including the 20 minutes break time. PIs Res.,

page 34. Nielsen testified there were no 20 minute breaks

unless Chen went to FMLA. Neilsen Dep., page 152.

On May 24, 2001, Lindsay and Nielsen gave Chen a

memo (Chen Dep., B-Ex 19) to inform her Lindsay would

become one of Chen’s supervisors. Even if the information

10

center was outsourced, Chen was stil] responsible for

develuping and maintaining the department’s databases.

Chen’s “personal medical condition is a private matter” and

between Chen and her physician; (/d., page NU00163).

|

Niclsen and Lindsay gave Chen a new job description

with Chen classified as “non-exempt - Preferred by

department”. PI.’s Stat., page 7. Guy Miller, Associate Vice

President of Human Resources, during discovery, testified

the phrase was irregular and occasionally seen at NU. The

phrase is for the department to suggest the grade to the HR

Compensation Division. Chen Br., page 4.

The May 24, 2001 memo also stated Chen had

inappropriate behaviors for providing reports to Manager

Lea Elder without correcting the dataset. Pl.’s Res., page 38.

Chen asked Nielsen why she did not provide Chen direction

on this project when Chen inquired of her. Nielsen replied

because they had already decided to write Chen up ina

memo. Chen Dep., B-Ex. 25, page NUOOI78.

For the new job description, Chen requested for job

and pay reclassifications. Nielsen and Lindsay refused to

consider. Pl.’s Stat., page 26.

By the end of May 2001, Chen turned suicidal. Her

physician referred her to psychological counseling. Chen

Dep., page 157; Chen Aff., page 23.

From May to August 200!, Chen went to HR to

request for her alternatives to relief pain. Twice, Bowers

asked her to fill out FMLA then rejected her applications

because she had a work-related injury. Chen Aff., page 31.

He then referred her to Andre who never reduced her

_ working hours. /bid. NU never accommodated any part of

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Chen physician’s prescription, including the 20 minutes

break time. /d., page 13. Chen summarized that NU rejected

her accommodation requests for 28 times, from May 2001 to

November 2001. PI.’s Stat., page 29.

On July 3, 2001, Lindsay called Chen into her office to

require Chen to redo the project for Elder which was the

subject of the May 24, 2001 memo. Lindsay addressed Chen

as “young lady” instead of by Chen’s name. PI.’s Stat., page

3. Chen asked Lindsay to talk with Elder to postpone the

project deadline. Lindsay refused. Chen knelt to show

sincerity. Lindsay still refused. Chen realized that it was

Lindsay and not Elder wanted the project done. She stood

up. Chen Dep., page 154.

On July 19, 2001, Lindsay delivered Chen a warning

memo dated July 18, 2001. Chen Dep., page 152; Rec. #1,

Complaint Filed with the District Court, Attachment.

Lindsay considered Chen’s kneeling on July 3 inappropriate

and threatened Chen with termination of employment. /bid.

Chen explained that kneeling in the Asian, Chinese, and

Japanese cultures meant sincerity. Lindsay said that she

understood kneeling in those culture meant sincerity.

Pointing to where she sat, Lindsay said, “But here, it is not

acceptable.” She further explained, “Here is the American

culture”. Chen Aff., page 23.

Powell in his response to EEOC’s inquiry verified in

writing that Chen received the July 18, 2001 disciplinary

letter because her kneeling behavior was not accepted in the

American culture. Pl.’s Stat., page 2. The July 18, 2001

memo also stated Chen used email excessively. Chen

counted she sent 9 emails in 9 days. Pl.’s Res., page 40.

12

This memo ended by saying “We will meet in 2 weeks,

August |, 2001, to review your progress and performance.”

Rec. #1, attachment; Chen Dep., Tab “B-Ex 27”, page 2.

Lindsay (black, 37) previously, occasionally addressed

Chen as “young lady”. Chen had never heard her calling

others as-such. Chen felt uncomfortable but did not confront

her. Pl.’s Stat., page 2. On July 19, after receiving the

memo, Chen reminded Lindsay that she called Chen “young

lady” on July 3. Chen also reported the young lady remark

on her August 13, 2001 memo. Lindsay called Chen “young

lady” still on 10/8/2001 and 11/19/2001. Pl.’s Stat., page 3.

The July &8, 2001 memo made Chen realize she had

been discriminated. Chen Aff., page 23.

On August 13, 2001, Chen reported to NU in a memo

dated August 12, 2001 about her being discriminated and

harassed for her race, country of origin, age, and disability.

The memo was addressed to Miller and Schnitzer and CC.

to Bowers, Durst, Lindsay, McGuire, Nielsen, Powell, and

Winters. Schnitzer Dep., Tab “14”, page 1. This memo was

also attached to Chen’s complaint filed with the District

Court. Rec. #1, attachment.

No one responded to Chen’s discrimination complaint.

Chen Aff., page 25. Schnitzer admitted that he knew about

issues reported in Chen’s memo as on going. Schnitzer

Dep., page 115; Pl.’s Stat., page 4. All peopte received the

memo discussed about it. Nielsen Dep., page 184. Miller

admitted that Chen reported things which had transpired.

Miller Dep., page 10; P1.’s Stat., page 6. Miller admitted that

NU had a discrimination grievance procedure and Chen

reported the compliant accordingly. He only talked with

Winters briefly and took no other actions. /bid.

13

The only response Chen obtained was from NU’s

Associate Counsel, Stephanie Graham. Graham contacted

Chen’s worker’s comp lawyer and wanted to know how

much Chen wanted for her case. Chen’s lawyer replied on

September 12, 2001. Pl.’s Stat., page 40; Chen Aff., page

31. Ever since then, management’s harassment actions

ceased at OCRT. Chen waited for a response from Graham.

Thid.

On 9/25/01, Bowers and Schnitzer met and decided to

alter the Program Assistant position description to offer to

Chen for layoff. Pl.’s Stat., page 31. The meeting note

stated, ““PA-would not qualify b/c phone skills, 1000 pieces

mailing per day at times; could not complete; computer

scheduling — constant keyboard activity”. /bid. Peri Todd

(white, 36) (Todd Dep., page 4) modified the job description

accordingly in November 2001. /d., pages 57, 63. Graham’s

name showed up on Bower’s notes for meeting with

Schnitzer on 10/25/2001. Pl.s Stat., page 36.

On November 13, 2001, Lindsay notified Chen with a

letter to tell her that her position is being eliminated. PI.’s

Memo., page 7. An alternate position of Program Assistant |

was offered to Chen with the same pay. PI.’s Res., pages 45-

46. Another employee, Program Assistant Kimberly

Crockett, (black, 27) was also notified of position

elimination. Pl.’s Res., page 44.

On 11/19/2001, Chen accepted the Program Assistant

position with her physicians’ work limits of maximum three

hours per day for computer use and envelope stuffing. Chen

Dep., B-Ex 34. On 11/27/2001, Lindsay wrote another letter

to tell Chen because she could not perform the essential job

14

functions of the Program Assistant position, she would be

laid off as of 11/29/2001.

There was another Program Assistant position at

OCRT whose job description contained no computer use.

Pl.’s Stat., page 38. There were other positions in OCRT

Chen had seniority. NU did not offer them to Chen. /hid.

Kimberly Crockett was not really laid off. She did not

lose one day of pay. Pl.’s Memo., page 9.

In March 2002, Chen learned Rosa Marjalaakso, the

Research Financial Analyst of OCRT, planned to leave NU.

_ She waited for the job opening. Chen Aff., page 25. Nielsen

paid an employment agency $8,000 to recruit the new

Research Financial Analyst (white, 25) with wage of

38,000. Nielsen Dep., page 204; Pl.’s Stat., page 38. Chen

never saw the job opening on the website. Chen Aff., page

25. Chen never had a chance to apply for the position. PI.’s

Resp., pages 51, 52; Chen Dep., page 226. Similar to the

- prior two openings in 2000 and 2001, for the position of

Research Financial Analyst position, Chen did not have an

opportunity to apply. She was prevented from knowing gthe

position opening and recruitment. /b., page 233. In February

2001, John Sikora, the prior Research Financial Analyst,

was promoted. Sikora Dep., page 7. After he was promoted,

he participated to recruit the next Research Financial

Analyst. /d., page 79. He did not let anyone in the Budget _

Division or OCRT know his promotion before the position

was filled. /d., pages 80, 81; Chen Br. Page10.

b. Chen’s Case to EEOC and the Courts

Chen retained an attorney to contact NU in November

2001. Chen Aff., page 32. NU invited Chen to file with

2,

EEOC for the mediation procedures. The attorney drafted a

brief version and they filed on 12/26/2001. [hid.; Pl.’s Res.,

page 62. After the case was filed, NU refused to participate.

Chen continued on her own and filed with EEOC a complete

complaint on 5/24/2001. Chen filed this complaint prior to

the EEOC Notice of Right to Sue letter issued on 7/25/2002

for her 12/26/2001 claim filed.

EEOC accepted all of Chen’s charges as filed because

of a pattern of continued behaviors. Chen Aff., page 32.

EEOC Charge of Discrimination cover page shows “Date

Discrimination Took Place” as from the earliest date of

10/1/1999 to the most recent date of 3/30/2002; and “The

Particulars Are” as “See Attachment’, which is Chen’s

written statement and attachments. Chen Br., pages 16, 18-

19. Chen reported unfavorable employment terms and

conditions of job classification, grade, salary, work space,

computer use, denied disability accommodations, and

unfavorable treatments to other Pacific Asian employees.

Pl.’s Resp., page 63.

The EEOC investigator, Janel McCollum-Smith, — -

obtained her supervisor’s approval to admit and allow all of

Chen’s complaints and evidence as filed, including the part

on other Asians. The 300-day limit was waived. /hid.

EEOC’s Notice of Charge of Discrimination sent to

NU also marked date of alleged violation, earliest

10/01/1999 to most recent 3/30/2002. PL.’s Opposition to to

Defendant’s Motion of Summary Judgment, page 2: Rec.#1,

Attachment; Chen App., Tab “47”, page 1; Tab “52”,

Declaration of Fiona Feng Chen, p., 3. 1).

On 4/5/2003. Chen received EEOC’s Notice of Right

to Sue for the 5/24/2002 charge. Chen filed complaint as pro

16

se with the Distnct Court for Northern Illinois, Eastern

Division, on 6/9/2003. The entire EEOC complaint was

attached. Rec. #1. Chen used the standard form provided by

the District Court to check the boxes as available. All the

choices on the form were for discrete violations. Chen

attached a five-page, typed complaint details. Rec. #1. Chen

emphasized that her complaint included all these

employment terms, conditions, and discharge. Pl.’s Opp.,

page |. Chen alleged NU discriminated against her race,

age, country of origin, and disability and retaliated against

her for reporting discrimination.

Upon the end of discovery, NU moved for summary

judgment on June 10, 2004. Among others, NU compared

Chen to Kim Crockett as follows.

In November 2001, Chen and Crockett were informed

that their positions were being eliminated. . . Crockett is an

African-American, non-disabled woman who was 27 years

old in November 2001. NU 56.1(a) Statement of

Uncontested Facts, page 21.

NU delivered to Chen Notice to Pro Se Litigant

Opposing Motion for Summary Judgment with an

instruction:

In order to defeat the defendant’s request, you

need to do one of two things: you need to show that

there is a dispute about important facts and a trial 1s

needed to decide what the actual facts are or you need

to expluin why the defendant is wrong about what the

law is. (Italic added) Rec. #41. Chen Br., page 29.

Chen filed response on August 19, 2004.

17

The District Court granted summary judgment for NU

on February 17, 2005S. Page 45a. Its key decisions pertaining

to the petition to this Court are:

1) The District Court acknowledged that Chen brought

the case under § 1981 (pages 27a, 34a), but it did not apply

the four-year Statute of Limitation.

2) a) The District Court time barred Chen’s claims and

evidence for the 300-day limit to July 28, 2001. Pages 28a,

29a. The District Court did not address to the fact that

EEOC had previously accepted all of Chen's claims and

evidence and waived the 300-day limit. b) Chen’s direct

evidence of the July 18, 2001 memo from Lindsay for

Chen’s behavior acceptable in the Asian culture but

unacceptable in the American culture was acknowledged in

the Fact section (pages 17a, 18a). It was, however, not

included in the Analysis section as evidence.

3) The District Court considered Chen failed to

establish the prima facie case in the indirect method because

the District Court considered Chen should provide another

employee with the Technical Software Specialist position in

the racial discrimination claim (Page 32a) and any other

employee complaining of discriminatory treatment in the

retaliation claim (page 36a).

The Court did so tn spite of its own writing that,

In November 2001, Lindsay consulted with

Bowers on letters to Chen and another employee,

informing them that their positions were being

eliminated. .. The other employee was a 27-year-old,

non-disabled, African-American woman. Page |8a.

18

Chen appealed to the Court of Appeals of Seventh

Circuits on May 20, 2005. The following arguments

pertinent to this Petition:

1) Section 1981 claims are with four-year SOL. Jones

v. R.R. Donnelley, 124 S.Ct. 1836 (2004). Chen Br.,

page 18. The District Court acknowledged that Chen

filed discrimination claims under § 1981. Chen filed

her claims on June 9, 2003. The SOL date should be

June 9, 1999. /d., page 20.

2) The District Court erred in reversing EEOC’s prior

decision and failed the summary judgment standard.

Id., pages 18 -19. The July 18, 2001 memo is

important to both Chen’s racial and age

discrimination claims (/d., pages 13, 14, 21).

3) In terms of other similarly situated employees, NU

did not really lay-off Crockett. Chen was the only

employee targeted for termination. Chen made her

prima facie case. /d., page 25.

The Court of Appeals decided on December 14, 2005

as follows.

1) The Court of Appeals acknowledged that Chen

brought the case under §1981. Page 2a. But it did not apply

§1981 SOL. It agreed with the lower court to time bar

Chen’s evidences to July 28, 2001. Pages 4a, Sa. For Chen’s

other arguments including §1981 SOL, it stated,

As for Chen’s other arguments that the district

court improperly refused to consider events outside the

300-day filing period, she waived these arguments by

—___—_—__——_———

19

not raising them before the district court. See Bishop v.

Gainer, 272 F.3d 1009, 1015 G@"°.Cir 2001). Page 7a.

2) The Court of Appeals did not address to whether the

lower court failed summary judgment standard by reversing

EFEOC’s decision. Pages 6a, 7a.

3) The Court of Appeals ignored the arguments

between petitioner and respondent, both comparing Chen

with another similarly situated employee, Crockett. The

Court of Appeals regarded the similarly situation employee

to be another Technical Software Specialist. Page Sa.

Chen petitioned for rehearing en banc on January 20,

2006 which was denied on January 31, 2006.

REASONS FOR GRANTING THE PETITION

1. CERFIORARI SHOULD BE GRANTED BECAUSE

THE UNITED STATES COURT OF APPEALS OF

SEVENTH CIRCUIT HAS ENTERED A —

DECISION TO REQUIRE A PLAINTIFF PRO SE

TO MAKE §1981 LAW ARGUMENT IN

ADDITION TO BRINGING SUE UNDER §1981 TO

QUALIFY FOR THE PROTECTION OF THE

LAW. THIS REQUIREMENT IS CONFLICT TO A

RELEVANT DECISION OF THIS COURT AND IN

CONFLICT WITH THE DECISION MADE IN

LOWER COURT OF ANOTHER CIRCUIT.

Any plaintiff pro se’ right to §1981 when bringing

pleads under §1981 should be protected, with or without

additional law arguments. The seventh amendment to the

United States Constitution provides: “In suits at common

law, where the value in controversy shall exceed twenty

20

dollars, the right of trial by jury shall be preserved, .. .” The

Equal Protection Clause of Section 1 of the Fourteenth

Amendment provides that no State shall “deny to any person

within its jurisdiction the equal protection of the laws.”

In Douglas B. Stephens v. Hofstra University School of

Law, 2005 WL 1505601 (E.D.N.Y.), Plaintiff Pro Se

brought the employment discrimination sue against his

former employer to the United States District Court of E.D.

New York. The Court granted him §1981 Statute of

Limitation of three years, Stephens at 5, without any law

arguments on his part. Stephens made the §1981 claim in his

second amended complaint. /b., at 2. The Court stated that,

‘“.. a court must construe pro se complains like

Stephens’s even more liberally, applying a more

flexible standard to evaluate their sufficiency than the

standard used to review complaints submitted by

attorneys.” Citing Lerman v. Bd of Elections in City of

New York, 232 F.3d 135, 140 (2d Cir. 2000). Stephens

at 3.

The Court also stated,

“A district court should not grant a motion to

dismiss solely because the plaintiff fails to respond to it

(or responds to it inadequately, for that matter). . .

Although a plaintiff is entitled to submit papers in

opposition to a... motion, he may also simply rely on

his pleading, where those pleading are legally

sufficient...” /b., at 3.

Should petitioner pro se have resided in E.D.N.Y., she

would have been granted the §1981 SOL.

21

—

42 U.S.C. § 1981(a) states:

All persons within the jurtsdiction of the United

States shall have the same right in every State

and Territory to make and enforce contracts, . . .

and to the full and equal benefit of all laws and

proceedings for the security of person and property.

The decision made by the United States Court of Appeals

for the Seventh Circuit violated petitioner’s rights to §1981.

In Jones et al. v. R.R. Donnelley & Son Company, 305

F.3d 717, the Court of Appeals of the Seventh Circuit held

that four-year SOL applied only to initial contract formation

and all employment actions after formation should be

subject to two-year SOL. Plaintiffs appealed to the Supreme

Court. In Jones et al., 541 U.S. 369, 124 S.Ct. 1836, the

Supreme Court held that “1) causes of action is governed by _

federal “catch-all” four-year statute of limitation if the claim

was made possible by a post-1990 enactment. . .”, and 2)

employees’ claims after contract formation were also

governed by “catch-all”, four-year SOL period.

The instruction NU gave to Chen pro se was “evidence

or law”. It did not state that if the law argument was not

raised at the district court, Chen was waiving the argument.

The District Court for Northern [llinois District Eastern

Division admitted that petitioner brought the case under

$1981. Pages 27a, 34a. However, it did not apply §1981

SOL to Chen’s case. Chen brought the issue to the Court of

Appeal. The pancl also acknowledged that Chen brought the

case under §1981. Page 2a. But it stated that “. . . she

waived these arguments by not raising them before the

district court.” The panel cited Bishop v. Gainer, 272 F.3d

oy)

—_ =)

1009, 1015 (7"" Cir. 2001) to disallow Chen’s other

arguments on time bar. /d.

In Bishop v. Gainer, Meyers’ SO! -vas waived because

at trial he made the statement that defense did not raise SOL

issue to him and he had not offered any hint of what

evidence he would have used to establish equitable tolling.

272 F.3d 1009, 1015, (7" Cir. 2001).

Chen’s situation is different from that of Meyers’.

Chen filed her claim under §1981. She presented through

deposition and exchanged documents with NU, evidence to

verify her claims. For example, first, Schnitzer, OCRT

Director, and Lindsay drafted her job description after

interviewing Chen. Chen was classified as non-exempt.

There was a phrase of “preferred by department” behind this

classification, which was disguised from Chen in 1999. The

same phrase showed up in Chen’s second job descnption

given on May 24, 2001. University Associate Vice

President, Miller testified during deposition, that the phrase

is irregular and occasionally seen at the University for the

department to suggest the grade to HR Compensation

Division. Pl.’s Memo, page 4. Schnitzer admitted that he did

not see anyone else at OCRT with such phrase. Pl.’s App.,

Tab “1°, Schnitzer Dep., pages 64-65.

Second, Schnitzer and Lindsay altered Project

Coordinator 2 job description to create Chen’s job

description. They are mostly identical except for the non-

exempt classification. Pl.’s Stat., Rec. #62, page 20.

Third, Schnitzer hired Chen to do the information

center project without telling Chen during the interview.

Pl.’s Memo, page. 13.

23

Fourth, Nielsen admitted that the information center

project was beyond Chen’s job description. Pl.’s Memo.,

page 12.

Chen testified that she was give five different job

duties and descriptions from 9/8/1999 to 11/29/2001. She

requested for job and pay reclassifications from March 2000

to September 2001 for 17 times. None of her requests were

granted. Pl.’s Memo, page 13; PI.’s Stat., pages 25-27.

The petition should be granted so that pro se’s right to

§1981 can be protected and the Seventh Circuit can be in

uniformity with the decisions of this Court and the court of

other circuit.

2. CERTIORARI SHOULD BE GRANTED BECAUSE

THERE IS NO PRECEDENCE FOR A DISTRICT

COURT TO REVERSE EEOC’S PRIOR

DECISION TO FAVOR THE MOVANT AND

MEET THE SUMMARY JUDGMENT

STANDARD. EVEN IF THERE IS A 300-DAY

LIMIT, THERE IS NO PRECEDENCE FOUND TO

EXCLUDE THE JULY 18, 2001 MEMO WHICH

HAD AN ENDING MEETING REQUIREMENT

ON AUGUST 1, 2001, WITHIN THE JULY 28, 2001

LIMIT. THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT HAS

DECIDED AN IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT.

Jenkins v. Blue Cross Mutual hospital Insurance, Inc.

was the landmark decision in the Seventh Circuit to allow

“likely or reasonable” charges to grow out of an EEOC

investigation. 538 F.2d 164, 167 (7" Cir. 1976) (en banc).

24

Similar court cases are found favoring the non-moving party

to have claims grow out of EEOC charges. See Nelson S.

Jenkins v. Wal-Mart Stores, Inc., 910 F.Supp. 1399; N.D.

lowa, Central Division, Nov. 26, 1995; Jhnomer M.

Sharafeldin v. Siate of Maryland, Department of Public

Safety and Correctional Services, 94 F.Supp.2d 680, D.

Maryland, April 10, 2000; and Myrtle Thomas v. Eastman

Kodak Company, 183 F.3d 38, United States Court of

Appeals, First Circuit, July 15, 1999.

We cannot find any precedence for district and circuit

courts to disallow plaintiff's claims and evidence previously

accepted by EEOC. By reversing EEOC’s decision to

Chen’s disadvantage, the district court should have failed

the Summary Judgment standard and the panel failed the de

vono review standard. The standard requires the court to

resolve all conflicts in favor of the non-moving party,

petitioner, and draw all reasonable inferences in favor of

that party. Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 150 (2000); Tuokey v. Chicago Park District,

148 F.3d 735, 740 (7" Cir. 1998).

To defeat the Summary Judgment, Chen presented the

fact and document that EEOC accepted all her claimed as

filed back to October 1, 1999. They was presented in her

Affidavit (Chen App., Tab “14”, page 32); Response to

NU’s 56.1(a) Statement (PI.’s Resp., Rec. #60, page 63);

Plaintiff's Opposition to Defendant’s Motion of Summary

Judgment (PI.’s Opp., Rec. #61, page 2-3); and

Memorandum of Law (PI.°s Memo, page 14).

Even if time barred for 300 days, the memo from

Lindsay dated 7/18/2001 had an ending meeting date of

August |, 2001 (Chen Dep., Tab “B-Ex 27°, page 2) and

should have been included as a direct evidence.

25

3. CERTIORARI SHOULD BE GRANTED BECAUSE

THERE IS NO PRECEDENCE FOUND FOR THE

COURTS TO DISALLOW THE EMPLOYEE TO

COMPARE TO THE SIMILARLY SITUATED

EMPLOYEE CHOSEN BY THE EMPLOYER.

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT HAS DECIDED

AN IMPORTANT QUESTION OF FEDERAL LAW

THAT HAS NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT.

Ever since the Motion for Summary Judgment, NU has

been comparing Kim Crockett to Chen as a similarly

situated employee. NU Stat., page 21. Chen has made the

comparison and proved that Crockett was not really laid off.

NU retained her by transferring her to a different

department. P].’s Memo, page 9. Chen was the only one

targeted for termination. Chen Br., page 25.

NU in its Response to Plaintiff's Second Set of

Interrogatories stated,

Northwestern states that Kim Crockett did not

lose any days of pay as a result of her layoff in 2001

nor did she receive any unemployment insurance

payments. Ms. Crockett’s last day of employment in

OCRT was November 29, 2001, the day on which her

position was eliminated. She received two weeks of

severance pay, and she started working in ORSP on

December 17, 2001. Pl.’s App., Tab “43~, page 2.

Chen concluded in appeal by using NU’s court case of

Rozskowiak v. Village of Arlington Heights,

26

Unlike Rozskowiak who was unable to produce

evidence that non-Polish officers who performed

similar to him were retained . . ., Chen is able to

establish her prima facie case by producing evidence

that a similarly-situated employee, both with positions

eliminated, outside of her protected classes of was

treated better, retained. Kim Crockett was a 27-year-

old, non-disabled, African-American woman... who

was not in Chen’s protected classes ... There is no

record Crockett ever filed a discrimination complaint

against NU. Chen established the prima facie case for

all her claims of race, age, country of origin, disability,

and retaliation. Chen Rep., pages 2, 3.

A research of court cases did not yield any precedents

in which that the Court ignored the similarly situation

employee chosen by the employer. Petitioner employee

should be able to be compared with the similarly situated

employee chosen by the employer.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

. Fiona Feng Chen

Petitioner Pro Se

11840 Covey Ln

‘Huntley, IL 60142

847-659-1989

Date: May 1, 2006

APPENDIX

la

APPENDIX A —~- JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH

CIRCUIT, CHICAGO, ILLINOIS

DECIDED DECEMBER 14, 2005

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

Submitted December 13, 2005*

Decided December 14, 2005

No. 05-1744

D.C. No. 03-C-3928

Northern District of Illinois, Eastern Division

FIONA FENG CHEN,

Petitioner,

v.

NORTHWESTERN UNIVERSITY,

Respondent.

Before

Hon. Richard A. Posner, Circuit Judge

Hon. Ann Claire Williams, Circuit Judge

* After an examination of the briefs and the record, we have concluded

that oral argument is unnecessary. Thus, the appeal is submitted on the

briefs and the record. See Fed. R. App. P. 34(a)(2).

2a

Hon. Diane Sykes, Circuit Judge

ORDER

Fiona Chen sued her former employer, Northwestern

University, for race and national origin discrimination in

violation of 42 U.S.C. §& 1981 and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § § 2000 et seq.; age

discrimination in violation of the Age Discrimination 1n

Employment Act, 29 U.S.C. § § 621 et seq.; and disability

discrimination and failure to accommodate a disability

under the Americans with Disabilities Act, 42 U.S.C. 8

12101 et seq. She alleged that she was discriminated against

when Northwestern failed to accommodate her disability,

failed to promote her, and ultimately terminated her. The

district court granted summary judgment for the defendants,

and we affirm.

Chen ts a native of Taiwan. In 1999, when she was 44

years old, she interviewed for an assistant accounting

position in Northwestern's Office of Clinical Research and

Training ("OCRT"). Though she was not hired for that

position, OCRT hired her later that year as a "Technical

Software Specialist,” a unique position specifically created

for her. This job required significant computer use, and

within a year Chen began to complain of arm and wrist pain.

In December 2000 and January 2001 Northwestern denied

her requests for accommodation that included assistance

from a secretary or a transfer to a position with secretarial

support. But Northwestern allowed her intermittent leave

and modified her duties so that less time was spent on the

computer. By April 2001 Northwestern could no longer

assign modified work because none was available. Chen

returned to her computer-related assignments, and

Northwestern provided her with an ergonomic keyboard

3a

recommended by her doctors and granted her intermittent

leave under the Family and Medical Leave Act so that she

could take periodic 20-minute breaks.

In August 2001 Northwestern re-organized OCRT,

cutting its budget and eliminating three staff positions

including Chen's. Nobody was hired to replace her. Pursuant

to Northwestern's seniority system for layoffs, Chen was

offered a less-senior position without a pay cut; the position

required substantial clerical and computer work. Chen

conditionally accepted, provided that she not be required to

work more than three hours per day on the computer, but

because this would prevent her from performing § the

essential functions of the job, Northwestern declined her

conditional acceptance and she was laid off in November

2001.

Chen filed charges with the EEOC tn December 2001

but she did not file suit within 90 days of receiving her

right-to-sue letter. In May 2002 she again filed charges with

the EEOC, and this time she timely sued in the district court,

alleging Northwestern discriminated against her on the basis

of race, national origin, age, disability, and retaliation, by

terminating her employment, failing to promote her to a

financial analyst position, and failing to accommodate her

requests for limited computer-related duties.

The district court, in a thorough 38-page decision,

granted Northwestern's motion for summary judgment.

First, the district court found that all allegedly

discriminatory acts occurring before July 28, 2001 (300

days before her EEOC filing on May 24,2002) were time-

barred, and that she could not show a continuing violation

because she did not provide evidence that Northwestern's

actions were sufficiently frequent or related. The court

found that Chen failed to establish a prima facie case of

4a

wrongful termination or retaliation because she introduced

no evidence suggesting that she was treated differently than

similarly situated employees. The district court also rejected

her failure-to-hire and failure-to-promote claims because

Chen did not present evidence that she was qualified or even

applied for the financial analyst position at issue. Finally the

court granted summary judgment on Chen's failure-to-

accommodate and disability claim because she did not show

that she could perform the essential functions of the job with

or without a reasonable accommodation.

Chen's discursive bnef on appeal raises twenty-two

arguments attacking the district court's reasons for granting

summary judgment against her, but none of these arguments

require us to reverse the district court's well-reasoned

decision. For instance, she generally challenges the district

court's determination that her discrimination claims based

on events occurring prior to July 28, 2001 were time-barred.

As the district court properly explained, however, claims

under Title VII, ADEA, and the ADA must be brought

within 300 days of the alleged unlawful employment

practice, Stepney v. Naperville Sch. Dist, 392 F.3d 236, 239

(7th Cir.2004); Flannery vo Recording Indus. Ass'n. of

America, 354 F.3d 632, 637 (7th Cir.2004), and here the

district. court properly refused to consider events that

occurred outside the 300 day period prior to her May 2002

EEOC filing. Chen argues that the district court should have

considered claims based on her December 2001 EEOC

filing, but she waived those claims because sh* did not bring

suit within 90 days of receiving that right-to-sue letter. See

Dandy vo United Parcel Serv.. Inc., 388 F.3d 263, 270 (7th

Cir.2004). The district court also correctly found that the

allegedly discriminatory actions were not. sufficiently

frequent or related to her termination to constitute a

conunuing violation. See Jinner vo United Ins. Co. of

America, 308 F.3d 697, 708 (7th Cir.2002). As for Chen's

Sa

other arguments that the district court improperly refused to

consider events outside the 300-day filing period, she

waived these arguments by not raising them before the

district court. See Bishop v. Gainer, 272 F.3d 1009, 1015

(7th Cir.2001).

Most of Chen's remaining arguments appear to contend

that the district court failed to address certain claims or

evidence. But the district court thoughtfully addressed all of

Chen's discrimination theories, and Chen has not explained

how any particular evidence overlooked by the court raised

disputed issues of material fact.

Finally, Chen asserts with little elaboration that the

district court erred in finding that she had not established a

prima facie case of discrimination under the indirect method

of proof; she contends that the court wrongly classified her

position as "unique" and found no other employees similarly

situated. Indeed, to prove a= prima facie case of

discrimination, the plaintiff must demonstrate that other

similarly situated employees who were not members of the

protected class were treated more favorably. See Michas v.

Health Cost Controls of Illinois, 209 F.3d 687. 693 (7th

Cir.2000). Here Chen has not pointed to any evidence in the

record to disturb the district court's finding that OCRT has

never hired anyone other than Chen for a comparable

"software specialist" position. Even if Chen had

characterized Northwestern's restructuring as a = mini-

reduction-in-force, in which her position” was not

permanently eliminated but instead her work load was

assumed by others, she would have needed to prove that her

duties were absorbed by employees who were not members

of her protected class, see id. But she did not raise this

theory or meet this burden of proof.

AFFIRMED.

6a

APPENDIX B —- JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS

EASTERN DIVISION

DATED FEBRUARY 17, 2005

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

CASE NO. 03 C 3928

FIONA FENG CHEN,

Petitioner,

Vv.

NORTHWESTERN UNIVERSITY,

Respondent.

HONORABLE DAVID H. COAR

MEMORANDUM OPINION AND ORDER

Before this Court is defendant Northwestern

University's ("Defendant" or "Northwestern") motion for

summary judgment against plaintiff Fiona Feng Chen

("Plaintiff or "Chen"). For the reasons set forth below,

defendant's motion is granted.

I. FACTS

In the spring of 1999, plaintiff Fiona Feng Chen

interviewed for an accounting assistant position in

Northwestern University's Office of Clinical Research and

7a

Training ("OCRT").' The OCRT runs clinicat studies for

Northwestern University clinical investigators, some of

whom conduct research for pharmaceutical companies;

OCRT administers budget for such studies. Chen was not

hired for the accounting assistant position. Chen was 44

years old at that time. Chen is of Chinese and Southeast

' Unless otherwise noted, the facts in this section are taken from

the parties’ Local Rule 56.1 Statements of Undisputed Facts.

Chen's Local Rule 56.1(b) response to Defendant's Statement of

Undisputed Facts and her Statement of Additional Facts both

contained numerous violations of the requirements of the local

rule. In addition, Chen submitted exhibits that fall outside the

scope of acceptable materials in support of summary judgment

briefs. For example, Chen filed a four-volume document entitled

"Appendix to Plaintiff's LR 56.1 Statement of Additional Facts in

Support of Its Opposition to Defendant's Motion for Summary

Judgment) and Plaintiffs Memorandum in Objection — to

Defendant's Motion for Summary Judgment and Plaintiff's

Response to Defendant's 56.1 Statement of Uncontested Facts." In

all, plaintiff has submitted somewhere in the range of 2,000 pages

of paper in this case. Many of these submissions fall just inside or

beyond the outer ranges of what is permissible under Rule 56.

Fed. R.Civ.P. 56. This volume of paper represents a burden on the

court and the defendant; and the questionable relevance of many

of the documents filed is vexatious. However, in keeping with the

standard of making all reasonable inferences in favor of the non-

moving party on summary judgment review, this Court will not

use its time considering whether or not an individual document

should be struck from the record but will instead decide this case

on the merits. To the extent that Chen relies on an

unauthenticated document, such as notes she created about her

medical history or computer complaints, that document will be

disregarded. Potentially self-serving documents with no

authentication or documents based on events or conversation of

which the creator has no personal knowledge are improper

evidence. There is no effect on the outcome of the summary

judgment decision.

8a

Asian descent and was born and raised in Taiwan.” Chen

has a Ph.D. in Public Administration from SUNY-Albany,

specializing i Policy Analysis and Organization

Management. 2

In August 1999, Chen interviewed with OCRT again.

She met with Sheri Lindsay, an Associate Director at

OCRT; Dr. Thomas Schnitzer, Director of OCRT: and Val

Campbell of Northwestern University Human Resources.

Chen was hired into a position created especially for her,

Technical Software Specialist, in September 1999. Chen

was employed as a Technical Software Spectalist from

September 1999 until the position was eliminated in

November 2001. :

When she began working at OCRT, Chen reported to

the OCRT Business Manager, Carol J. Nielson.’ Chen

reported to Nielsen until May 24, 2001, when she also began

*Chen, who is representing herself pro se in this matter, filed two

sets of responses to Defendant's motion for summary judgment.

This Court informed her that it would not consider multiple

filings. Chen accordingly stated that she would rely on the second

filing. Defendant filed a Motion to Strike for significant

violations of Local Rule 56.1. That motion remains pending and

will be considered separately. Chen then sought leave to file an

amended set of response pleadings in an attempt to cure the

alleged Local Rule 56.1 deficiencies. This Court granted that

leave. Defendant did not seek leave to file a sur-reply. As a result,

defendant's reply brief responds to a filing that is no longer

properly before this Court. As plaintiffs amended filings sought

to cure what were largely procedural defects, the substance of the

amended brief does not differ from that of the filing it superseded.

Defendant's reply brief, therefore, remains responsive.

a , i *

The parties dispute the exact title of Carol J. Niclsen's position. Her

exact title is irrelevant to the outcome of this motion.

9a

to report to Sheri Lindsay. Both Carol Nielsen and Sheri

Lindsay reported directly to Dr. Schnitzer. Chen was

assigned to a workstation in an open, hallway work area on

the fifth floor of the OCRT offices, close to Nielsen and

Lindsay's offices. One other employee, an accounting

assistant who reported to Nielsen, worked in the workstation

next to Chen's. After she began work, Chen asked to be

moved to an office or to some other private workspace. The

parties dispute whether there were vacant offices available

on the fifth floor when Chen made these requests.

Apparently, an office on the fifth floor was temporarily

empty on two occasions when the position of Research

Financial Analyst was vacant. There were no other offices

on the fifth floor that were vacant at any point during Chen's

employment in OCRT.

Technical Software Specialist Position

The Technical Software Specialist position involved

substantial computer work. Chen's initial job description

prepared by the University provided that at least 30% of the

Technical Software Specialist duties and responsibilitics

would involve computer database work, and another 30%

would involve providing technical assistance to OCRT staff.

The position's job description assigned duties including the

design, implementation, and maintenance of various

databases; creation of materials and publications to promote

OCRT within Northwestern University: provision § of

technical assistance and support to OCRT staff; and

coordination of financial activitics to enhance departmental

reporting, all of which was largely done on the computer.

During her first year in the Technical Software Specialist

position, Chen worked as many as 6-8 hours per day on the

computer for periods of up to two-and-a-half months at a

time.

10a

Chen's Reclassification Requests

The Technical Software Specialist ("TSS") position

was classified as non-exempt and grade 12 on_ the

University's grading scale. Northwestern permits an

employee, an employee's supervisor, and the department of

human resources to request position reclassification.

However, reclassification requests normally come from the

employee's supervisor. In September 1999, shortly after

Chen took the TSS position, Chen and Val Campbell, a

Human Resources Consultant with Northwestern, discussed

the possibility of reclassifying Chen's position as "exempt"

and increasing Chen's salary. The TSS position was not

reclassified. Chen renewed her reclassification request to

Matthew Bowers, a Consultant in Northwestern's Human

Resources Department, in May 2001.7. The Human

Resources department discussed Chen's request at a

regularly-scheduled personnel issues meeting, and again

determined that Chen's position was properly classified and

made no changes.

In July 2001, Chen asked Rita Winters, Director of

Human Resources on Northwestern's Chicago campus,

about reclassification and a pay raise. Winters asked Karen

McGuire, Northwestern's Director of Compensation, to

conduct another review of the position to determine whether

reclassification was appropriate. McGuire only conducted

Chen disputes this statement in her L.R. 56.1 Response. A

review of the pages from her own affidavit that she cites in

support of her opposition to this statement, however, supports the

defendant's position. Chen's affidavit states, "When I was given

another new job description on May 24, 2001, | though that was a

good opportunity to request for a job and pay reclassification. |

sent memos and supporting documentation to Matthew Bowers,

our consultant at HIR at that time." Chen Aff. at 18-19.

lla

five or six reclassification requests for positions moving

from non-exempt to exempt during her three years as

Director of Compensation.’ As part of her review, McGuire

interviewed Chen for 45-60 minutes in August 2001.

McGuire also visited OCRT to review Chen's job duties and

met with Sheri Lindsay and Chen about those duties. In

addition, McGuire gathered information about fourteen

similar positions at Northwestern and prepared a chart

listing each position, its grade level, its exempt or non-

exempt status, and the salary level assigned. She compared

Chen's position and grade level to these other positions, and

determined that Chen's position was properly classified. The

TSS position therefore continued to be a non-exempt, Grade

12 position.

Chen's Initial Performance at OCRT

During her first year at Northwestern, Chen generally

performed well. In her first performance review, which

Chen disputes this characterization of McGuire's deposition

testimony, arguing that McGuire admitted to performing

"probably between 30 to 50 reclassifications" from non-exempt to

exempt during her entire time at Northwestern. According to

Plaintitf, McGuire performed all but five or six of these

reclassification reviews in the time period of 1994 to 1999, when

she was a Senior Compensation Analyst (1994-1997) and a

Manager of Staffing and Employee Development (1997-1999).

Chen's objection to Defendant's statement of fact is technically

true. The "clarification" tends to support Defendant's position

over Plaintiff's, however, because it shows that it was more

unusual than not for the Director of Compensation § to

perform a review, rather than one of her subordinates. Such

fine-grained gquibbling occurs throughout Plaintiffs 56.1

filing. To the extent that Plaintiffs dispute of Defendant's -

other facts is similarly unhelpful, it will be disregarded.

l2a

occurred in June 2000, Nielsen rated Chen's performance as

a "4" out of a possible "5." Chen received a 5% pay raise in

her first year at Northwestern. is

Chen's supervisors noted in Spring 2000 that Chen had

some communication problems and counseled her to

improve her communication. On March 22, 2000, Chen sent

an email to Nielsen and to Lea Elder, the Associate Director

of Clinical Research at OCRT, in which she complained of

inadequate communication from them, stating — that

"managers carry certain responsibility, too, you know."

Chen closed the email by stating, "I think it is your

responsibility to communicate to your subordinates what

you are doing. If you fail to do so, take the responsibility for

the consequences, and do not blame your subordinate ...

Take your own responsibilities, please." Nielsen considered

Chen's statements in the March 22, 2000 email regarding

managers to be "inappropriate" and_ testified in her

deposition that she informally counseled Chen about them.

Chen denies such counseling occurred.

Chen's Medical Condition

In August 2000, Chen reported to Nielsen that her arm

and wrist hurt from using her computer, keyboard, and

mouse. Chen applied for worker's compensation benefits in

August 2000 for a reported injury to her hands. Chen

received various worker's compensation benefits between

August and November 2000 while several physicians

evaluated her medical condition. Chen contends that

Northwestern "shopped" for physician's opinions and forced

her to come to work when she was unable to do so. In

September 2000, Chen informed Nielsen that she was

unable to perform any task that required her to use her hands

repeatedly, including answering the phone, photocopying,

filing, and using writing utensils.

3a

Between August and November 2000, Nielsen

modified Chen’s work assignments because of Chen's

reported inability to perform certain tasks with her hands.

During this time period, Chen was intermittently on leave,

performed modified job duties, and worked less than eight-

hour days. Chen alleges that she was not allowed to work

less than eight hour days unless she used sick and annual

leave, but acknowledges that there were times she did not

attend work for a full eight hours. Chen was not required to

perform any computer-related tasks from August 2, 2000

through November 2000. Instead, she attempted to perform

other tasks, including doing close-outs; doing spreadsheets

by hand; reviewing amendments for budget changes:

reviewing access books; going through study binders and

completing a checklist to ensure that all items were present;

and preparing regulatory binders for regulatory close-outs.

Occasionally, Chen's condition prevented her from

performing the modified duties assigned, and Northwestern

had difficulty finding any tasks that she could perform.

Chen reported that she was experiencing pain doing non-

computer work in November 2000. When she was at work

between August and November 2000, Chen occasionally

took breaks at her desk, put her head down, and rested.

Nielsen counseled Chen not to sleep at her desk. On

November 16, 2000, Reynold André, the Claims Manager

for Northwestern's Office of Risk Management, wrote Chen

a letter informing her that her workers’ compensation

benefits for her bilateral hand pain had been terminated.

Chen returned to full-time work status in November 2000.

Northwestern did not require Chen to do any computer

work between August 2000 and April 26, 2001: Chen

estimates that she did zero hours of computer work per day

during that time frame. In late April 2001, before

Northwestern required Chen to resume work duties

l4a

- requiring substantial use of a computer and keyboard,

Northwestern provided Chen with an ergonomic keyboard.

Chen had requested the ergonomic keyboard and a trackball

mouse on several occasions prior to April 2001. :

Chen's Accommodation Requests

In December 2000 and January 2001, Chen began

requesting work accommodations other than relief from

computer work, including a transfer to other positions with

secretarial support, or a secretary for her current position.

On December 20, 2000, Chen sent a letter to Matthew

Bowers, 1n which she wrote, "Under ADA, to facilitate the

University to accommodate my disability, | am attaching a

copy of my vita for your reference. Some secretarial

assistance would be helpful." In addition, Chen submitted

applications for two positions in January 2001; one was

Associate Director of Academic Programs-CE (Continuing

Education); and the other was Associate Director of

Academic Programs-CE (Continuing Studies). Both

positions required substantial administrative and teaching

experience; the positions were responsible for planning,

managing and evaluating an academic program plan for

university-level credit. Northwestern reviewed Chen's

transfer applications, but she was not selected for either

position. Matthew Bowers, Northwestern University Human

Resources Consultant, stated that Chen did not possess the

requisite administrative experience. Chen disputes this fact

and asserts that her educational and employment history met

the requirements of the job posting.

On January 23, 2001, Northwestern held a meeting to

discuss Chen's accommodation requests. Present at that

meeting were Chen; Rita Winters; Carol Nielsen; Melissa

Durst (Human Resources); Michael Powell, Director of

Equal Employment Opportunity, Affirmative Action and

lSa

Labor Relations at Northwestern University; and Anne

MecNicholl, Operations Consultant, Office of the Vice

President of Research, Northwestern University. During the

meeting, Chen stated that the ADA was inapplicable to her

situation and requested that Northwestern not apply the

ADA ta her.

On January 24, 2001, Chen wrote a letter to Powell in

which she cited a decision from the United States District

Court of the Northern District of California, holding that an

employee's surgically-corrected carpal tunnel syndrome was

not a ‘disability’ within the meaning of the ADA. She then

wrote, "[t]herefore, | am not disabled within the meaning of

the ADA." Powell determined that the ADA did not apply to

Chen because she was not "otherwise qualified" to perform

the essential duties of ber position, with or without a

reasonable accommodation. Chen replied and denied that

she had requested any ADA accommodation. In subsequent

memos, Chen referred to the ADA as "inapplicable."

Although Northwestern and Chen agreed that the ADA did

not apply to her situation, Northwestern attempted to find

non-computer tasks for Chen to do in order to allow her

hands and wnists to improve. Chen never contacted Powell

to seek any further accommodation after the January 23,

2001 meeting.

In mid-December 2000, Chen's doctor prescribed that

Chen should begin working six hours per day with a twenty

minute break every hour, and with no computer keyboard

work, cffective January 7, 2001. In mid-February, Chen's

doctor updated her prescription, stating that she should

continue working six hours per day and could begin using

an ergonomic keyboard and trackball mouse for thirty

minutes per day. At the beginning of March 2001, Chen's

doctor prescribed an increase in work hours to eight hours

per day with a twenty minute break every hour. On May 8,

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2001, Chen's doctor increased her computer keyboard time

to two hours per day.

By April 2001, however, OCRT was running out of

modified non-computer work for Chen to perform. The

computer-related duties of the TSS position that Chen

normally would have been assigned were not being

completed. In May 2001, Nielsen and Schnitzer consulted

with Bowers and determined that they could no longer allow

Chen not to perform the computer-related tasks essential to

her position. On May 9, 2001, Schnitzer and Nielsen met

with Chen and informed her that she would need to perform

all of the tasks related to her job, including computer-related

tasks, no matter how much time on the computer those tasks

required. They further informed her that if she could not

fulfill her position duties, she should contact Human

Resources to determine her options. However, Northwestern

allowed Chen to take twenty minute breaks during May -

2001 while waiting for Chen to apply for leave time under

the Family and Medical Leave Act to cover her breaks and

frequent doctors’ visits. Chen resumed the complete duties

of her TSS position in May 2001. She estimated that she

worked on her computer for an average of six to eight hours

every day between May and November 2001.

Chen did not seck a transfer to another position

between May and November 2001. Chen never-applied for

the Financial Research Analyst position at OCRT.

Chen's Performance and Discipline

Shortly after resuming her complete job duties on May

9, 2001, Chen engaged in a series of communications with

her managers and co-workers. that -her -supervisors

considered inappropriate. On May 9, 2001, Chen sent an

email to Nielsen that said, "I have a ‘stupid’ question. If you

i7a

know how to do [a database task], why don't you just do it

yourself?" The following day, Chen sent an email to Lea

Elder, in which she raised concerns about her work situation

and stated that her assignment to clean data in a database

was not her responsibility. Bowers and Winters, from

Northwestern's HR department, consulted with Nielsen and

Schnitzer and helped draft a written reprimand on May 24,

2001, regarding Chen's inappropriate and unprofessional

communications. Nielsen and Schnitzer met with Chen on

May 24, 2001, to discuss the reprimand.

Chen sent a written complaint to Winters in late May

2001 regarding the May 24, reprimand. Winters investigated

the complaint by interviewing Chen and several OCRT

employees involved in the underlying situation. Winters

concluded that Chen had been treated fairly; she sent Chen a

memorandum reporting her findings on July 9, 2001.

Chen received her annual performance review on June

27, 2001. She received an overall performance rating of "3"

out of "5S," which meant that she was "meet [ing]

expectations." The review noted Chen's strengths, but also

highlighted areas that needed improvement, including

interpersonal communication, team-building skills, and

interpretation of conversation and written information. Chen

received a 3.5% pay raise in 2001.

In July 2001, Lindsay, in consultation with Matthew

Bowers of HR, wrote Chern a formal disciplinary memo for

inappropriate conduct involving a supervisor and _ for

excessive and redundant use of email. On July 3, 2001,

Chen asked Lindsay for a change in one of her work

assignments. When Lindsay refused, Chen begged her to

change the assignment and, eventually, knelt on the floor of

Lindsay's office and begged again. Lindsay demanded that

Chen stand up and informed her that such conduct was

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unprofessional. Chen stated that kneeling was a way of

demonstrating sincerity in certain Asian cultures; Lindsay

responded that although she understood Chen's explanation,

in American culture kneeling was inappropriate.

Elimination of Chen's Position

In mid-2001, Northwestern decided to move OCRT

from reporting to the university's Vice President of Research

to the Medical School. In late October, Dr. Robert Rosa, the

Executive Associate Dean for Clinical Affairs at the

Medical School wrote to Schnitzer, OCRT's director,

instructing him "to decrease the projected expenses of the

OCRT ... by approximately $200,000." Rosa explained that

the decrease was required based on projected revenue

estimates for OCRT. During Fall 2001, Schnitzer met with

Bowers to discuss personnel reductions in OCRT in light of

the budgetary constraint. Schnitzer and his management

team decided to eliminate three support-staff positions that

did not provide services directly to principal clinical

investigators, including the Technical Software Specialist

position. Chen asserts that Bowers directed members of the

OCRT management to update the Program Assistant |

position description, adding additional computer and mail

preparation duties that required use of an employee's hands

and wrists.

In November 2001, Lindsay consulted with Bowers on

letters to Chen and another employee, informing them that

their positions were being eliminated for budgetary reasons.

The other employee was a 27-year-old, non-disabled,

African-American woman. The employee in the third

position had already decided to leave the university when

her position was eliminated; she was simply not replaced.

Northwestern has a “bumping rights” policy, under which a

displaced senior employee may displace a lower-graded

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employee within the same unit. Northwestern offered Chen

to opportunity to "bump" a Program Assistant 1 employee in

OCRT, a position that required a substantial amount of

computer work. The Program Assistant | position was a

lower pay-grade, but Northwestern offered to continue

paying Chen at her former pay grade. Chen responded on

November 19, 2001, by accepting the position on the

condition that Northwestern allow her to limit her computer

work to no more than three hours per day and permit her to

follow other restrictions noted by her doctors. Lindsay

consulted with the Human Resources department, which

determined that computer work beyond three hours per day

was an essential component of the Program Assistant |

position. On November 27, 2001, Lindsay prepared a letter

to Chen, explaining that Chen's work restrictions prevented

her from performing the essential functions of the Program

Assistant | position and that she was, therefore, terminated,

effective November 29, 2001. OCRT has not had a

Technical Software Specialist position since that time.

Between December 2001 and May 2002, Chen applied

for five different open positions at Northwestern. Each

application was processed according to Northwestern's

practice, and Chen was not selected for any of the positions.

None of the positions that Chen applied for during this time

was in OCRT, and none of Chen's former supervisors in

OCRT had any involvement in the hiring decisions for the

positions.

Chen's Computer and Mouse

During her first year at OCRT, Chen complained to

Nielsen that her computer was slow, that it crashed

frequently, and that her mouse did not work very well. Chen

requested a new computer and new mouse during the first

year of her employment. Other employees had computer

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malfunctions in this. time. An_ information technology

employee for Northwestern inspected Chen's computer and

determined that it was sufficient for the tasks she was asked

to perform. The information technology employee inspected

Chen's mouse, which Chen had complained was

malfunctioning, and cleaned it in 1999, Chen thought her

mouse still did not work properly and bought her own

mouse.

On March 10, 2001, Chen submitted a letter to Michael

Powell, Northwestern's Director of Equal Employment

Opportunity, Affirmative Action and Labor Relations. The

letter referred Powell to a February 13, 2001 prescripticn

from Chen's doctor for an ergonomic keyboard and trackball

mouse due to her carpal tunnel syndrome. Chen asserts that

she had first requested the ergonomic keyboard and

trackball mouse in February. Northwestern contends Chen

was not performing any computer work at that time.

Northwestern purchased an ergonomic keyboard and

delivered it to Chen in late April 2001 when Chen began

performing computer work again. Northwestern did not ask

Chen to resume substantial keyboard work until May 9,

2001.

Alleged "Young Lady" Comments

During Chen's employment in OCRT, Lindsay referred

to Chen as a “young lady" on approximately three

occasions. Chen informed Lindsay that she found the

"young lady" comment offensive. According to information

provided to Chen by Northwestern, Chen was the third

oldest member of OCRT during her employment there.

Lindsay was nine years younger than Chen. In a

conversation with Lindsay about Chen, Schnitzer directed

Lindsay not to refer to Chen as "young lady,” if Chen found

it offensive.

2ia

The Research Financial Analyst Position

Between September 1999 and March 2002, the

Research Financial Analyst position at OCRT became

available three different times. It was available in February

2000, January 2001, and March 2002. On each occasion, the

position was posted on Northwestern's job posting system

and made available for other employees or potential

employees to apply for. Chen never applied for the Research

Financial Analyst position.

Chen's Memo Regarding Other Discriminatory or

Harassing Acts Against Chen

Chen sent an_ eight-page memo with multiple

attachments, dated August 12, 2001, to Guy Miller, Vice

President of Human Resources, and Thomas Schnitzer,

Director of OCRT, with a subject line that read, "OCRT &

HR Discrimination and Harassment vs. My Alternatives."

Copies of the memo were also sent to Matthew Bowers,

Melissa Durst, Sheri Lindsay, Karen McGuire, Carol J.

Nielsen, Michael A. Powell, and Rita Winters. In_ this

memo, Chen states that she "came to realize | have been

discriminated and hirassed by OCRT, HR and thus, the

University, because of my race, Asian, Chinese American,

born abroad, age, over 40, and disability, Carpal -Tunnel

Syndrome." She goes on the describe the experiences and

incidents that led her to this realization, as outlined below,

including Lindsay's "young lady" comments, Chen's

workstation location, and her carpal tunnel syndrome and

worker's compensation issues.

Chen states that Lindsay introduced her to a group of

visitors to OCRT by saying, "Fiona does whatever we tell

her to do." Lindsay also would walk out of her office to

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throw trash in Chen's trash can on occasion.

In February 2000, Chen reports that Nielsen directed

her to write emails as formal memoranda because English is

Chen's second language. On August 3, 2000, after learning

that Chen reported a work-related injury to Northwestern,

Nielsen expressed concern about the Risk Management

office's response instead of asking how Chen was doing. On

September 6, 2000, Chen returned to work, although she

was still injured. Chen states that Nielsen's first comments

to her, while Nielsen ate a container of yogurt as breakfast,

were that if Chen could not do her work, she would need to

contact HR to discuss her alternatives.

In December 2000, Chen states Bowers told her that if

she did not apply for FMLA leave, that Northwestern could

cut her position to half time or terminate it entirely. She

states that Melissa Durst, also of HR, told her on January 22,

2001, that if Northwestern found it an undue hardship to

accommodate Chen's injury, that would call for termination.

Chen states that OCRT and Northwestern HR

repeatedly told her that she needed to request Family and

Medical Leave Act ("FMLA") time to cover her doctors'

appointments and prescribed daily breaks. Chen states that

she applied for FMLA leave three times during nine months,

but that HR did not regard her as qualified because she had a

work-related injury. Northwestern notes that on two

occasions, Chen did not properly complete the FMLA

application paperwork and thus, her application could not be

processed.

Other Asian-Pacific Employees

Principal Investigators at OCRT

Dr. George Liang and Dr. Peter Lee were faculty

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members and physicians at Northwestern. Both men were

also principal investigators for research trials conducted in

OCRT. Drs. Liang and Lee were never supervised by Dr.

Thomas Schnitzer, Sheri Lindsay, or Carol Nielsen. Each

OCRT research trial is financially supported by grant money

from an industry sponsor. Usually, the total amount of grant

money exceeds the costs that OCRT and its clinic incur in

conducting the clinical trial; any excess grant money Is then

allocated to the principal investigator and is referred to as a

"physician recovery." Nielsen is responsible for reviewing

and approving a budget for each clinical trial conducted in

OCRT, which includes the amount of "physician recovery,"

if any. Nielsen bases her decision about the amount of

physician recovery to allow on a variety of factors,

including study cost and revenue. The recoveries typically

range between eight and twenty percent of the total budget:

Nielsen tries not to let a physician recovery go below 10%.

Nielsen never considers the identity fo the principal

investigator in determining the amount of physician

recovery to allow in a particularly clinical trial budget.

Nielsen never received any complaint from Dr. Lee or Dr.

Liang regarding the amount of the physician recovery set for

any clinical trials that either doctor conducted at OCRT.

Temporary Emplovees at OCRT

Michelle Tran was a temporary employee at OCRT.

Tran reported to John Sikora and Dr. Thomas Schnitzer. Dr.

Schnitzer thought very highly of Tran's work. When Tran

was hired, she had just finished maternity leave and was

looking for part-time flexible work hours. She worked a

flexible schedule at OCRT. Tran wanted to become a

permanent employee once her child got older. Her

supervisors and other OCRT managers discussed making

Tran a permanent employee and were positive about the

possibility of doing so. Tran never applied for a permanent

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position. In fact, Tran left her temporary position at

Northwestern because her child developed an illness, and

she needed to spend more time on her child's care.

Keerana Swastikul was employed by Northwestern in

the Office of Sponsored Research Programs ("OSRP") on

the Evanston campus, from approximately 1990 until 1996.

OSRP is a separate department from OCRT, where Chen

worked, although both are under the Office of the Vice

President of Research. During this time, Swastikul reported

to Barbara Siegel, the head of OSRP. She then worked in

the OSRP office on the Chicago campus _— from

approximately 1996 until the end of April 2000, during

which time she reported to a number of supervisors. At no

time did Swastikul report to Carol Nielsen or Sheri Lindsay.

Swastikul is a native of Thailand and English is her

second language. Swastikul experiences some difficulties

writing in English. In 2000, Pamela Webb, one of

Swastikul's supervisors in Chicago, told Swastikul that her

English was not good enough and that she needed to

practice her English. Another of Swastikul's supervisors,

Sara Judd, frequently called Swastikul in to complain about

Swastikul's written English skills.

In 1996, Swastikul complained to Northwestern's

affirmative action officer, Andy Neukranz-Butler, about

certain racially-motivated comments that Swastikul claimed

various Northwestern employees in OSRP directed at her

while she worked on the Evanston campus. Swastikul never

complained to anyone at Northwestern about discrimination

after she moved to the Chicago campus in 1996.

Sheri Lindsay hired Lauro Sansano as a temporary

employee in OCRT in May 2000. Lindsay completed a

Personal Data form indicating that Sansano was hired as a

P de

temporary employee, which Sansano signed in Lindsay's

presence on May 15, 2000. Sansano worked as a temporary

employee in OCRT from May 2000 until! December 2000.

While he was employed in OCRT, Sansano completed and

signed time sheets every two weeks that were entitled

"Temporary Employee Time Sheet"; Lindsay also signed

these time sheets on numerous occasions to approve

Sansano's pay. Temporary employees at Northwestern may

only work for 1,000 hours in a calendar year. When Sansano

had worked 1,000 hours, his emplcyment at Northwestern

ended. Sansano never complained to Matt Bowers in HR

about anything relating to hts employment.

Other Employees’ Promotion and Job Changes

Allison Johnson was hired as a Protocol Coordinator in

OCRT in October 2000. In January 2002, Johnson was

given additional responsibilities and was promoted to a Lead

Coordinator position. Debbie Gibson began working as an

employee in OCRT in February 1998. In 2001, Gibson

worked as a Research Coordinator in OCRT. In January

2002, Gibson was moved to a new position as a Regulatory

Coordinator. Amy Lillard was hired by Northwestern in

April 2001 as a Special Projects Coordinator I. She was

promoted to Special Projects Coordinator [f in September

2001. In June 2002, Lillard was transferred to a Regulatory

Coordinator position that had been vacated by another

employee.

Chen's Discrimination Charges

On May 24, 2002, Chen filed a Charge of

Discrimination (No. 210A203237) with the Equal

Employment Opportunity Commission. In it, she alleged

discrimination based upon race, national origin, age,

disability, and retaliation. On April 5, 2003, Chen received a

26a

Notice of Right to Sue for Chen's Charge No. 210A203237.

Chen then filed her complaint in this lawsuit on June 5,

2003.

Il. SUMMARY JUDGMENT STANDARD

Summary judgment 1s appropriate when the pleadings,

depositions, answers to interrogatories, and admissions on

file, along with any affidavits, show there is no genuine

issue of fact. Such a showing entitles the moving party to

judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson

ve Liberty Lobby, Inc.. 477 U.S. 242, 106 S.Ct. 2505, 91

L..Ed.2d 202 (1986); Lucas vo Chicago Transit. Authority,

307 _ F.3d 714, 720 (7th Cir.2004). A genuine issue of

material fact exists only when a reasonable factfinder could

find for the nonmoving party, based on the record as a

whole. The court does not weigh the evidence and it does

not make credibility determinations. Instead, the court

makes all reasonable inferences in favor of the nonmoving

party. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.

133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); EEOC v.

Sears, Roebuck & Co., 233 F.3d 432, 436 (7th Cir.2000). If

a party fails to present proof on an essential element of his

or her case, then all other facts become necessarily

immaterial. Ribando v. United Airlines, lnc., 200 ¢.3d 507,

509 (7th Cir.1999).

fil. ANALYSIS r

Any discussion of Chen's claims must begin with a

discussion of Chen's evidence. Chen is proceeding pro se in

this matter and faces the significant evidentiary barriers

common to pro se parties. In particular, Chen has submitted

several volumes of exhibits to this Court, much of which has

not been authenticated or verified by anyone with personal

knowledge of the information contained therein. In addition,

27a

Chen has attached exhibits to several of the deposition

transcripts submitted, and a closer look at the deposition

transcripts reveals that several of these exhibits are not

properly submitted, were not produced during discovery,

and remain unauthenticated. Although this Court construes

all evidence in the light most favorable to the nonmovant

when deciding a summary judgment motion, this Court

cannot consider material that is not properly before it. Even

taking into consideration Chen's pro se status, this Court

will not consider documents whose veracity cannot be

determined.

A. Discrimination Claims

Under the ADEA, Title VII, or § 1981, a plaintiff may

prove her employment discrimination claim using either the

"direct method" or the “indirect method." See Cerutti_ v.

BASF Corp., 349 £.3d 1055, 1060, 1061 n. 4 (7th Cir.2003).

Under the direct method, the plaintiff can use either direct or

circumstantial evidence to show that her employer's decision

to take an adverse employment action against her was

motivated by an impermissible bias, such as race, age, or

national origin. /d. at 1061. Direct evidence is evidence that,

without relying on inference or presumption, proves that the

employer discriminated against the plaintiff; the trier of fact

must find such direct evidence believable. Rogers v. City of

Chicago, 320 F.3d 748, 753 (7th Cir.2003). As such, courts

have described direct evidence as essentially "an admission

by the decision-maker that his actions were based upon the

prohibited animus.” /d. (citation omitted). The plaintiff may

also prevail under the direct method of proof by weaving a

net of circumstantial evidence that "allows a jury to infer

intentional discrimination by the decisionmaker.” /d.; see

also Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th

Cir.1994). Such a net of circumstantial evidence, however,

must point "directly to a discriminatory reason for the

28a

employer's action." Adams _v. Wal-Mart Stores, Inc. 324

F.3d 935,939 (7th Cir. 2003).

The indirect method of proof is the familiar burden-

shifting approach from McDonnell-Douglas, where plaintiff

establishes her prima facie case of discnmination, defendant

rebuts it, and plaintiff demonstrates that defendant's rebuttal

is a mere pretext for discrimination. Ceruiti, 349 F.3d at

1062. A_ plaintiff proceeding under this method must

establish that (1) she is a member of a protected class (e.g.,

race, national origin, age); (2) she was qualified for the

position (or to be retained, promoted, or rehired); (3) she

suffered an adverse employment action; and (4) similarly

situated employees outside of her protected class were

treated more favorably by their employer. /d.

No matter how the plaintiff chooses to proceed, the

burden remains on the plaintiff to demonstrate that the

employer would not have taken the alleged adverse

employment action against the plaintiff but for plaintiff's

membership in a protected class. Cerutti, 349 F.3d at 1062.

1. Certain of Chen's Allegations Are Time-Barred

Before the merits of Chen's claims can be addressed,

the Court must determine whether any of her allegations are

time-barred. Under Title VII of the Civil Rights Act of

1964, a plaintiff must file a discrimination charge with the

Equal Employment Opportunity Commission ("EEOC") or

the Illinois Human Rights Commission within 300 days of

the "alleged unlawful employment practice." 42 U.S.C. §

2000e-S(e)(1); see also Nat'l RR. Passenger Corp. vy.

Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d

106 (2002) (discussing charge filing requirements of Title

Vil). When the act complained of is a discrete retaliatory or

discriminatory act, "it ‘occurred’ on the day it ‘happened’.

29a

Morgan, 536 U.S. at 110. The 300-day period begins to run

on the day the act occurred. Acts that occurred outside the

limitations period, e.g., that occurred more than 300 days

prior to the triggering act, must be connected to the events

that occurred within the limitations period. /d. at 118. A

significant time lapse between the acts within the limitations

period and those outside it may bar Plaintiff from seeking

recovery for or relying on the acts that occurred outside the

statutory period. See Garrison v. Burke, 165 F.3d 565, 570

(7th Cir.1999) (quoted in Boebel v. Combined Ins. Co. of

Am., No. 02 C 1772, 2004 WL 144135, at *3 (N.D.IIl.

Jan. 16, 2004)).

There are three considerations a court may use to

determine whether a continuing violation exists: (1) the

relatedness of the subject matter of the alleged acts or

conduct; (2) the frequency of the acts or conduct

complained of; and (3) their degree of permanence. See

Selan_v. Kiley, 969 F.2d S00, 565 (7th Cir.1992). Chen's

complaint alleges wrongful termination, failure to promote,

failure to reasonably accommodate her disability and failure

to hire. With the exception of the failure to reasonably

accommodate, these are all discrete acts and isolated acts.

The failure to accommodate claim fails continuing violation

analysis because Chen fails to provide sufficient evidence

that Northwestern's denials of her accommodation requests

were frequent or related. Therefore, any actions that

occurred before July 28, 2001 (that date minus 300 days) are

outside of the 300-day limit and no longer susceptible to

judicial review. See 42 U.S.C. § 2000e-S(e); Lucas_v.

Chicago Transit Auth.. 367 F.3d 714. 720-21 (7th Cir.2004).

2. Wrongful Termination

a. Direct Method

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Chen alleges that she was wrongfully terminated. Chen

has adduced no direct evidence of discriminatory animus 1n

her termination. She appears to seek to provide

circumstantial evidence to create an inference — that

Northwestern had a discriminatory intent when it terminated

her. To succeed, Chen must produce enough evidence to

permit a reasonable finder of fact to infer that Northwestern

was motivated by Chen's race, national origin, age, or

disability (actual or perceived) when it terminated her.

Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 983-39 (7th

Cir.2003). Chen would have to offer evidence showing that

the person who decided to eliminate her position and

terminate her, Schnitzer, was motivated by one of the

discriminatory reasons she claims when he made that

decision. See Chiaramonte v. Fushion Bed Group, Inc., 129

F.3d 391, 396 (7th Cir.1997). Northwestern asserts that

Chen does not offer any evidence of this nature because

none exists. Chen attempts to prove discriminatory intent by

pointing to a series of comments and decisions undertaken

by people at OCRT, Northwestern HR, and_ other

departments.” Chen fails to show how the decisions and

incidents involving other people demonstrate thet Schnitzer

was motivated by impermissible discriminator, animus. In

fact, in her discussion of the experience of certain other

Asian-Pacific employees, she discusses someone who

worked in a different department, was supervised by

difference people, and had no experience with Schnitzer, the

person who decided to terminate Chen. As such, Chen fails

to adduce direct proof of discriminatory intent 1n_ her

wrongful discharge claim.

a) . .

Northwestern notes, correctly, that the assertions Chen makes about

discriminatory conduct by other employees at Northwestern are largely

unsupported. Moreover, Northwestern notes that Chen's brief does not

cite to evidence or law tending to support her assertions.

31a

b. Indirect Method

Chen asserts that she can make her prima facie case of

discrimination through indirect evidence. She points to the

United States Supreme Court's decision in Desert Palace,

Ine. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84

(2003), as support for her position. Desert Palace holds that

a plaintiff is not required to present direct evidence of

discrimination under Title VII in order to obtain a mixed-

motive jury instruction. /d. at 92. Desert Palace does not,

however, alter the requirement that a plaintiff provide some

evidence of a discriminatory motive. /d. at 99-100. Desert

Palace is unhelpful here, because Chen ts unable to produce

evidence to support a prima facie claim.

Chen argues that she is a member of a protected class

as a woman of Asian-Pacific ongin who was forty-four

years old when she was hired. Pl.'s Resp. Br. at 11. She

asserts that she was qualified for the position because she

has a doctoral degree and "long-term teaching and working

experience in the area." Pl.'s Resp. Br. at 13. Chen states

that she suffered an adverse employment action when she

was terminated in November 2001.

Northwestern does not dispute that Chen is a member

of a protected class on the basis of national origin, race, and

age. In addition, Northwestern does not dispute that Chen

was qualified for the position of Technical Software

Specialist, which both parties state was created especially

for Chen. Pl.'s Compl, Attachment to Charge of

Discrimination, at 4 HIL4 ("My position of Technical

Software Specialist was created for me."); Def.'s L.R. 56.1

Stmt at 9 7 ("The Technical Software Specialist position

was created especially for Chen."). Finally, Northwestern

does not dispute that Chen was qualified for the TSS

position.

32a

Chen's prima facie case fails because she is unable to

establish that she was treated differently from similarly

situated employees who were not members of a protected

class. To do this, she would have to provide evidence that

there was an employee who was not a member of her race,

age, or national origin class in a TSS or similar position who

was treated differently from her. The uniqueness of Chen's

position is particularly problematic in this regard. Both

parties concede that the position was created especially for

Chen. Northwestern asserts that the TSS position in OCRT

has not existed since Chen was laid off. There is no

evidence that-there were other TSS positions or employees

‘in comparable positions in OCRT at any time during Chen's

employment. Chen is unable to show that there were

similarly situated employees who were not members of her

protected class(es) and who were treated differently from

her. Thus, her prima facie case fails. Summary judgment is

therefore appropriate on Chen's wrongful termination claim.

3. Failure to Promote

Chen alleges that Northwestern discriminated against

her by failing to promote her into the Research Financial

Analyst position in OCRT in 2000 and 2001. Northwestern

contends that Chen is time-barred from pursuing claims

relating to events that occurred prior to July 28, 2001.

Moreover, Northwestern contends that Chen never applied

for the position. Chen asserts that she did not know that the

Research Financial Analyst position was open. She asserts

that Northwestern prevented her from knowing about the

position opening, but the citation to the record she provides

docs not support her assertion. Furthermore, Chen

acknowledges that she "never saw the job opening"

announcement. Northwestern asserts that the position was

posted on the university's job posting system all three times

ee ete re ae

33a

it became available and provided copies of the job

requisition for all three openings.’ Def.'s L..R. 56.1 Stmt at §

154-55; Bowers Dep. Ex. G. In addition, Chen has failed to

provide evidence showing that she was qualified for the

Research Financial Analyst position. Grayson_yv. City of

Chicago, 317 F.3d_745, 748 (7th Cir.2003) (plaintiff must

prove both that she applied for and that she was qualified for

the position in question). Rather, Chen has provided a copy

of her resume and asserted that, in her opinion, based on her

advanced degree and her prior work experiences, she was

qualified for the position. Even drawing all reasonable

inferences in favor of the non-movant, this Court is unable

to rely on unsubstantiated statements or assertions by a party

to defeat a summary judgment motion. Thus, because Chen

never applied for the Research Financial Analyst position,

summary judgment for the defendant is appropriate on her

failure to promote claim.

4. Failure to Hire

A plaintiff alleging a fatlure to hire claim must

establish that (1) she belongs to a protected group; (2) she

applied for and was qualified for a job for which the

employer was seeking applicants; (3) she was rejected,

despite her qualifications; and (4) the employer hired

someone outside the protected group. /dughes v. Derwinski,

967 F.2d 1168, L171 (7th Cir.1992). Chen fails to make her

prima facie case, as discussed below.

” Chen disputes that the position was posted on the university's job

posting system and contends that the copies of the job requisition form

show only that the position was filled each of the three times it was

open. However, a closer inspection of the requisition form reveals that

the form reports not only the date the position was filled or closed, but

also the date the requisition was authorized. In each case, there is a

difference of at least ten days between requisition and closing date.

Bowers Dep., Ex. G.

34a

a. The Research Financial Analyst Position

Chen also asserts that Northwestern failed to hire her

into the Research Financial Analyst position in 2002. The

difficulty with Chen's failure to hire claim is identical to her

failure to promote claim, that ts, she did not actually apply

for the position in question.

b. Post-Layoff Job Applications

After her termination, Chen applied for five different

positions at Northwestern in December 2001 and May 2002.

Chen concedes that each application was _ processed

according to Northwestern's practice and that she was not

selected for any of the positions. None of the positions was

in OCRT. None of Chen's former supervisors in OCRT was

involved in the hiring decisions for these positions. Chen

has provided no contrary evidence on any of these issues.

For these reasons, the defendant is entitled to summary

judgment on Chen's failure to hire claim.

5. Retaliation Claim

Chen alleges’ that Northwestern impermissibly

retaliated against her in violation of Title VII, the ADEA, §

1981, and the ADA. Under these statutes, unlawful

retaliation occurs when an employee suffers an adverse

employment action because he or she opposed

impermissible workplace discrimination. Rogers vo City of

Chicago, 320 F.3d 748, 755 (7th Cir.2003).

Northwestern argues that Chen's retaliation claim 1s

improper because she did not raise it in her complaint and a

"plaintiff may not amend [her] complaint through arguments

3Sa

in [her] brief in opposition to a motion for summary

judgment." Garza ve City of Chicago, No., 99 C 391, 2000

WL 283910, at *4 (N.DA. Mar.14, 2000). Northwestern

further states that Chen did not include retaliation

allegations in the five-page, single-spaced attachment to her

complaint which made allegations about a litany of issues.

This is not entirely accurate. Paragraph IIl.1 of Chen's

attachment to her complaint sets forth allegations that

clearly support a retaliation charge. Several other paragraphs

also set forth allegations consistent with a retaliation claim,

although in somewhat incoherent fashion. Moreover, Chen

attached her EEOC right to sue letter and EEOC Charge of

Discrimination to her complaint. On her Charge of

Discrinmnation, she clearly checked the box for retaliation

discrimination. As such, and bearing in mind Chen's pro se

status, this Court will deny Northwestern's request to bar

Chen's retaliation claim as improperly raised.

A plaintiff can prove retaliation discrimination using

either the direct or the indirect methods described above.

Rovers v. City of Chicago, 320 F.3d 748, 754 (7th

Cir.2003). A plaintiff may proceed under the direct method

by adducing either direct or circumstantial evidence that

permits a fact finder to infer discrimination. Rogers, 320

F.3d at 754, Circumstantial evidence can include suspicious

timing, ambiguous statements, evidence that the employer

treated similarly situated employees differently, or evidence

that the employee was qualified but was subject to

differential treatment for which the employer's reason is

mere pretext. Gorence v. Eagle Food Centers, Inc., 272 F.3d

759, 762 (7th Cir.2001).

Chen puts forth no direct evidence of retaliation. She

does, however, put forth some circumstantial -evidence,

namely the timing of her termination. Chen asserts that she

was targeted for termination three months after she

36a

submitted an eight-page memo to Guy Miller, Associate

Vice President of Human Resources, and Thomas Schnitzer,

Director of OCRT, detailing that she "realized that [she]

ha[d] been harassed and discriminated [against]." This

memo purported to list the ways in which various OCRT

supervisors and employees had discriminated against Chen;

it was copied to seven people in OCRT and Northwestern

HR. Chen asserts that the three month gap between her

memo and her termination "provides ground" for her

retaliation claim. The Seventh Circuit, however, has stated

that "mere temporal proximity between the filing of the

charge of discrimination and the action alleged to have been

taken in retaliation for that filing will rarely be sufficient in

and of itself to create a triable issue." Stone_v. Citv_of

Indianapolis Pub. Utils. Div. 281 F.3d 640, 644 (7th

Cir.2002). Chen presents no other circumstantial evidence

as grounds for her retaliation claim. This Court finds that

Chen presents no evidence to support the direct method of

proving retaliation.

Chen can also proceed via the indirect method of

proving retaliation. This method ts similar to the

McDonnell-Douglas burden-shifting approach, but has been

clarified by the Seventh Circuit in Stone _v. Citv of

Indianapolis Public Uulities Division. 281 F.3d 640 (7th

Cir.2002). Under the indirect method articulated in Stone,

Chen must establish a prima tacie case of discrimination.

One of the required elements of her prima facie case is that

"only she, ‘and not any otherwise similarly situated

employee who did not complain, was ... subjected to an

adverse employment action." ' Rogers, 320 F.3d at 755

(quoting Stone, 281 F.3d at 642)). Chen provides no

discernible evidence of whether any other employee at

OCRT complained of discriminatory treatment. However,

even if she had, she fails to overcome Northwestern's

legitimate, nondiscriminatory reason for its actions and

37a

therefore, fails to defeat summary judgment.

Assuming that Chen had been able to make out a prima

facie case, the burden of production would shift to

Northwestern to provide a legitimate, nondiscriminatory

reason for terminating Chen. Northwestern states that

Schnitzer eliminated three positions in OCRT as part of an

effort to meet a requirement that he eliminate $200,000 from

OCRT's budget when OCRT was moved into the

Northwestern University Medical School. Dr. Robert Rosa,

the Executive Associate Dean for Clinical Affairs of

Northwestern's Medical School, wrote a letter to Schnitzer

on October 26, 2001, stating "I am instructing you to

decrease the projected expenses of the OCRT for budget

year 2001-2002 by approximately $200,000." Rosa

indicated that this budget decrease was "necessitated by the

most recent estimates of projected revenues for the OCRT."

To meet this mandate, Schnitzer and his management staff

decided to eliminate three support-staff positions that were

not directly providing services to principal investigators.

These positions included the TSS position Chen held. Chen

admits that Rosa directed Schnitzer to cut OCRT's budget

by $200,000. In addition, Chen is unable to produce

evidence showing that Northwestern's budgetary constraint

was mere pretext for discriminatory retaliation.

Because Chen is unable to rebut Northwestern's .

nondiscriminatory reason, summary judgment for the

defendant on Chen's retaliation claim is appropriate.

6. Failure to Reasonably Accommodate-ADA

claim

Chen alleges that Northwestern discriminated against

her on the basis of disability in May 2001 when it refused

her request to work no more than two hours per day on her

computer and keyboard: and again in November 2001, when

38a :

it refused to allow her typing, copying, and computer work

to only three hours per day in the Program Assistant |

position and, instead, terminated her. Northwestern contends

that Chen's first accommodation request is time-barred

because it occurred prior to July 28, 2001; it further

contends that her second accommodation request was

unreasonable and that, in any event, it terminated her

because of university budgetary constraints that necessitated

eliminating her position.

The ADA _ prohibits” certain) employers from

"discriminat[ing] against a qualified individual with a

disability because of the disability of such individual in

regard to job application procedures, the — hiring,

advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and

privileges of employment." 42 U.S.C. § 121 12(a) (2000). It

is undisputed that Northwestern University is an empioyer

subject to the ADA. It is less clear whether Chen ts an

"individual with a disability" for the purposes of the

statute.” However, when deciding a summary judgment

motion, this Court will make all reasonable inferences in

favor of the non-moving party. Therefore, this Court will

* Chen has taken conflicting positions about whether she is an

individual with a disability over the course of her employment

with Northwestern and the pendency of this litigation. During her

pre-termination communications with Northwestern's human

resources and risk management personnel, Chen both requested

accommodation of her disability under the ADA and denied that

she was disabled and stated that her situation was not covered by

the ADA. (Def.'s L.R. 56.1 Stmt, at 4] 4] 70, 76-84). Northwestern

agreed that the ADA did not apply to Chen. (Def.'s L.R. 56.1

Stmt, at | 79-80). However, Northwestern and Chen continued to

discuss modified work assignments that would not aggravate her

hand and wrist pain. (Def.'s L.R. 56.1 Stmt, at 83).

39a

treat Plaintiff as an individual with a disability for the

purpose of deciding this motion.

To prove that she suffered disability discrimination

under the ADA, Chen may use either the direct or the

indirect method of proof. As with Title VII claims, there are

two acceptable forms of evidence under the direct method:

direct evidence and circumstantial evidence. Direct evidence

is essentially an admission by the employer that its decisions

were based on discriminatory animus. Rogers _v. Citv of

Chicago, 320 F.3d 748, 753 (7th Cir.2003). Circumstantial

evidence, by contrast, permits a fact-finder "to infer

intentional discrimination by the decision-maker." /d.

Chen may also choose to proceed under the indirect

method, which requires her to establish a prima facie case of

discrimination. To make her prima facie case, Chen must

show that (1) she was disabled under the ADA; (2) she 1s

qualified to perform the essential functions of her job with

or without reasonable accommodation; and (3) she has

suffered from an adverse employment action because of her

disability. Buie vy. Quad/Graphics, Inc., 366 F.3d 496, 503

(7th Cir.2004) (citation omitted). If Chen establishes a prima

facie case of disability discrimination, then the burden of

production shifts to Northwestern to articulate a legitimate,

nondiscriminatory reason for its adverse employment action

against Chen. /d.; Dvorak v. Mostardi Platt, Inc., 289 F.3d

479, 485 (7th Cir.2002). At that point, the burden would

shift back to Chen; she would be required to show by a

preponderance of the evidence that Northwestern's proffered

nondiscriminatory reason is a mere pretext for intentional

disability discrimination. Buic, 366 F.3d at S03.

A plaintiff must show that she was qualified, with or

“without accommodation, to perform the essential functions

of her job at the time that the employer took the allegedly

40a

discriminatory action. Ammons _v. Aramark Uniform Servs.,

Inc., 368 F.3d 809, 818 (7th Cir.2004); Ross v. Indiana State

Teacher's Ass'n Ins. Trust, 159 F.3d 1001, 1013 (7th

Cir.1998). When determining what constitutes an essential

job function, the court will consider "job description,

employer's opinion, amount of time spent performing the

function, consequences for not requiring the individual to

perform the duty, and past and current work experiences.”

Emerson v. Northern States Power Co., 256 F.3d 506, 512-

13 (7th Cir.2001).

a. Direct Method of Proving Disability

Discrimination

Chen has no direct evidence of disability

discrimination. She must therefore proceed via

circumstantial evidence or via the familiar McDonnell-

Douglas burden-shifting method. Cerutti_v. BASF Corp..

349 F.3d 1055, 101062 (7th Cir.2003). Chen seeks to

present circumstantial evidence of disability discrimination.

Specifically, she provides three-and-a-half pages of

numbered paragraphs which purport to demonstrate that a

reasonable finder of fact could infer discriminatory intent

from the university's actions. Much of the “evidence"

presented in these pages of Chen's brief is questionable,

unsubstantiated, or inadmissible hearsay. Moreover, Chen

cites no legal authority for her assertion that this evidence

constitutes sufficient circumstantial evidence to establish an

inference of discrimination. The remainder address Chen's

claims that she was unfairly disciplined, prevented from

learning of job openings, or denied accommodation

requests. Beyond the somewhat circular nature of some of

these arguments, e.g., "I was not accommodated because |

was not accommodated," Chen's assertions have been

contradicted by the record or are unsupported. Chen is

unable to proceed under the direct method.

4la

b. Indirect Method of Proving Disability

Discrimination

Chen must use the indirect, burden-shifting method to

establish her prima facie case of disability discrimination.

The elements of the prima facie case are identical to those

discussed above. Chen is a member of a protected class on

the basis of her age, race, and national origin. She further

asserts that she is a member of a protected class on the basis

of her disability, specifically carpal tunnel syndrome. As

previously noted, this Court will treat Chen as disabled for

the limited purpose of this summary judgment motion only.

Chen asserts that she was qualified for the position because

of her advanced educational achicvement and extensive

resume. Chen also asserts that she suffered adverse

employment actions, including the elimination of her TSS

position, Northwestern's refusal to accommodate her

proposed restrictions on the Program Assistant | position,

and her ultimate termination. The fourth element of her

prima facie case is fatal to Chen's argument again, because

Chen is unable to produce evidence establishing that she

was treated differently from similarly situated employees

who were not members of her protected class.

Northwestern contends that Chen was unable to

perform the essential functions of her position, with or

without reasonable accommodation. This is the question that

this Court must answer in Chen's case. The factors that a

court takes into consideration when determining what

constitutes an essential job function include job description,

employer's opinion, amount of time spent on the function in

question, consequences of not requiring the employee to

perform the function, and past and = current work

experiences, daemons ve dramark Uniform Servs., Inc., 368

F.3d 809, SIS (7th Cir.2004) (quoting Emerson v. Northern

States Power Co., 256 F.3d 506, 512-13 (7th Cir.2001)).

42a

(1) Chen's May 2001

Accommodation Request

Northwestern contends that this accommodation

request is time-barred. Even if it was timely, Northwestern

asserts that Chen's May 2001 request to limit her computer

work to two hours per day was unreasonable; The TSS

position, Northwestern asserts, was a "quintessential

computer job." Def.'s Br. at 13. Moreover, Chen admits that

she worked on her computer for up to 6-8 hours per day for

months at a time.” Chen's job functions included the design,

implementation, and maintenance of various databases;

creation of materials and publications to promote OCRT

within Northwestern University; provision of technical

assistance and support to OCRT staff; and coordination of

financial activities to enhance departmental reporting, all of

which was largely done on the computer. The initial job

description for the TSS position estimated that at least 30%

of the position's duties would involve computer database

work and another 30% would involve technical assistance to

OCRT staff. Even taking a conservative view and assuming

that only 30% of the position's duties involved computer

work, the position still required over two-and-a-half hours

of computer work per day. Between August and November

2000, Chen's supervisors in OCRT allowed her to perform

” Chen asserts that she was able to perform her job functions

because when she was not working on the computer, she was

assisting colleagues in building databases. For evidentiary

support, she cites a memo that she wrote to Michael Powell on

March 10, 2001. This is insufficient because it is a self-serving

statement contained in a document drafted by the plaintiff in this

case. There is no evidence that any of Chen's supervisors agreed

with Chen's interpretation of her job performance and ample

evidence that they disagreed.

434

non-computer tasks while they waited for her hands to

improve. These alternate duties were not part of Chen's job

duties; moreover, there was a limited supply of alternate

duties in the office. Chen estimates that she performed zero

hours of computer work per day from August 2, 2000 until

April 26, 2001.

Northwestern asserts that Chen's accommodation

request effectively required it to create a new job for Chen

or make light duty work available indefinitely. The Seventh

Circuit has stated that "a significant change in the essential

functions of [plaintiff's] job" do not amount to a reasonable

accommodation. Ammons, 368 F.3d at 819. Chen's

suggested accommodations would amount to limiting her

work to two hours out of an eight-hour work day. The other

accommodation she suggested, that she sit with OCRT

employees and help them build and maintain the databases

they used without using a computer herself, would amount

to using two employees’ time to perform one employee's job

function. These are not accommodations that would allow

Chen to perform the essential functions of her position. "An

employer is not obligated to change the essential functions

of a job to accommodate an employee." Lmerson_y.

Northern States Power Co., 256 F.3d 506, 514 (7th

Cir.2001). Chen's May 2001 accommodation request was

unreasonable for the purposes of the ADA and therefore,

Chen was not a "qualified individual" under the Act.

(2) Chen's November 2001.

Accommodation Request

Chen alleges that Northwestern failed to reasonably

accommodate her in November 2001, when it denied her

request to take the Program Assistant | position on the

condition that she perform no more than three hours of

copying, typing, or similar tasks per day. Northwestern

44a

contends that Chen's condition rendered her unable to

perform an essential function of the Program Assistant |

position and that her proposed accommodation was

unreasonable. -

Northwestern asserts that the Program Assistant |

position was primarily clerical and required a large amount

of typing, copying, and other computer work. Working more

than three hours per day on the computer was an essential

function of the job, according to Northwestern. Chen

disputes this assertion and argues that Northwestern updated

the Program Assistant | position description before offering

her the position as a "bump" option when the TSS position

was terminated. The inference appears to be that

Northwestern updated the position description in order to

expressly disqualify Chen from being able to fill the

position. Chen provides only her own inferences and

asusmptions to support this assertion, namely that Matt

Bowers in HR emailed Schnitzer, stating that OCRT

supervisors were updating position descriptions to be used

in layoff letters. The supervisor who updated the Program

Assistant | description stated in her deposition, however,

that she did not know the updated description would be used

in the layoff letters. This tends to undercut Chen's apparent

argument that Northwestern deliberately updated the

description in order to eliminate Chen. Another reasonable

inference is that the job descriptions were revised to reflect

Schnitzer's restructing plans for OCRT in response to the

budget reduction mandate.

Courts do not second-guess an employer's judgment as

to what constitutes an essential function of a job. Peters _v.

City of Mauston, 311 F.3d 835, 845 (7 th Cir.2002) (citing

DePaolt vy. Abbott Labs., 140 F.3d 6608, 674 (7th Cir.1998)).

In addition, Chen's request that she be permitted to perform

no more than three hours of copying, typing, and other

45a

computer tasks per day was not a_ reasonable

accommodation. For these reasons, Chen was not

"qualified" under the ADA because she could not perform

the essential functions of the Program Assistant | position

with or without a reasonable accommodation.

Summary judgment is appropriate for the defendant on

Chen's failure to reasonably accommodate claims.

Conclusion

For the foregoing teasons, sutamary judgment is

granted to the defendant on all of plaintiff's claims. All other

motions are moot and terminated. This case is closed.

Enter: ‘

/s/David H. Coar

David H. Coar

United States District Judge

Dated: February 17, 2005

46a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH

CIRCUIT DENYING REHEARING AND

REHEARING EN BANC JANUARY 31, 2006

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

January 31, 2006

No. 05-1744

D.C. No. 03-C-3928

Northern District of Illinois, Eastern Division

FIONA FENG CHEN,

Petitioner,

v.

NORTHWESTERN UNIVERSITY,

Respondent.

Before

Hon. Richard A. Posner, Circuit Judge

Hon. Ann Claire Williams, Circuit Judge

Hon. Diane Sykes, Circuit Judge

ORDER

47a

On Consideration of the petition for rehearing and

petition for rehearing en banc, no judge in active service has

requested a vote on the petition for rehearing en banc! and

all of the judges on the original penal have voted to deny

hearing. It is therefore ordered that the petition for rehearing

and petition for rehearing en banc is DENIED.

' Chief Judge Flaum did not participate in the consideration of

this petition for rehearing.

48a

APPENDIX D- STATUTORY PROVISIONS

Title VU of the Civil Rights Act of 1964 (Pub. L. 88-352),

‘as amended

UNLAWFUL EMPLOYMENT PRACHCES

SEC. 2000e-2. [Section 703]

)

(a) It shall be an unlawful employment practice for an

employer -

(1) to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's race, color,

religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment tn any way which would deprive

or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an

employee, because of such individual's race, color, religion,

sex, or national origin.

Section 2000e-3. Other unlawful employment practices

(a) Discrimination for making charges, testifying, assisting,

or participating in enforcement proceedings

It shall be an unlawful employment practice for an

eniployer to :

discriminate against any of his employees or applicants for

employment, for an employment agency, or joint labor-

management committee controlling apprenticeship or other

training or retraining, including on-the-job training

programs, to discriminate against any individual, or for a

labor organization to discriminate against any member

49a

thereof or applicant for membership, because he has

opposed any practice made an unlawful employment

practice by this subchapter, or because he has made a

charge, testified, assisted, or partic’ pated in any manner in

an investigation, proceeding, or hearing under this

subchapter.

The Age Discrimination in Employment Act of 1967

29 U.S.C. § 623. Prohibition of age discrimination

(a) Employer practices

It shall be unlawful for an employer -

(1) to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age;

(2) to limit, segregate, or classify his employees in any

way which would deprive or tend to deprive any individual

of employment opportunities or otherwise adversely affect

his status as an employee, because of such individual's age;

or

(3) to reduce the wage rate of any employce in order to

comply with this chapter.

(d) Opposition to unlawful practices; participation in

investigations, proceedings, or litigation

It shall be unlawful for an employer to discriminate

against any of his employees or applicants for employment,

for an employment agency to discriminate against any

individual, or for a labor organization to discriminate

against any member thereof or applicant for membership,

because such individual, member or applicant for

membership has opposed any practice made unlawful by

this section, or because such individual, member or

applicant for membership has made a charge, testified,

50a

assisted, or participated in any manner in an investigation,

proceeding, or litigation under this chapter:

The Americans with Disabilities Act of 1990

DISCRIMINATION

SEC. 12112. /Section 102]

(a) General rule. - No covered entity shall discriminate

against a qualified individual with a disability because of the

disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other

terms, conditions, and privileges of employment.