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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0724%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## Text

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.

4

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

6

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.

7

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,

8

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

9

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

11

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,

l6a

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

IXa

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

19a

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

20a

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

22a

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

23a

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

24a

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

30a

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, condi

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0724%3A1. Public record. Not legal advice.