Opinion
Cause No. IP99-0879-C-H/G
October 2, 2000
Bull; Brenda F Rodeheffer Monday Rodeheffer Jones Albright Indianapolis, IN 46220
Philip J Ripani Henderson Daily Withrow Devoe Indianapolis, IN 46204
ENTRY ON DEFENDANT'S SUMMARY JUDGMENT MOTION AND RELATED MOTIONS
Rahim Elghanmi taught mathematics at Franklin College in Indiana for several years and was then denied tenure. Elghanmi has sued Franklin College under Title VII of the Civil Rights Act of 1964. He alleges that Franklin College based its decision to deny him promotion and tenure on his national origin and religion. Franklin College has moved for summary judgment on the ground that Elghanmi cannot establish a prima facie case of discrimination as a matter of law. Franklin College has also moved for summary judgment on Elghanmi's request for punitive damages. In addition to the substantive issues before the court, each party has contested the other's submissions under Local Rule 56.1, which governs the presentation of materials on summary judgment motions.
For the reasons discussed below, Franklin College's summary judgment motion is denied on the merits but granted on Elghanmi's request for punitive damages. The College's motion to strike two documents that Elghanmi submitted in response to the motion for summary judgment is granted. In addition, Elghanmi's motion to strike portions of the additional evidence that the College submitted with its reply brief is also granted. Most of the College's objections to Elghanmi's submissions are overruled.
Preliminary Matters
The parties have submitted three matters relating to the submissions on the summary judgment motion itself: (1) Franklin College's motion to strike two exhibits submitted by Elghanmi in opposition to the summary judgment motion; (2) Elghanmi's motion to strike portions of Franklin College's "Statement of Additional Evidence on Reply"; and (3) Franklin College's more general objections to Elghanmi's response to the summary judgment motion.
I. Franklin College's Motion to Strike
Franklin College's Motion to Strike seeks to exclude Plaintiff's Exhibits 2 and 21 from the summary judgment record. Exhibit 2 appears to be a letter from Franklin College's attorney to the Equal Employment Opportunity Commission. Exhibit 21 appears to consist of copies of electronic mail messages regarding classroom observations of Elghanmi's teaching.
Under Rule 56(e) of the Federal Rules of Civil Procedure, documents submitted as evidence to support or oppose a motion for summary judgment must be authenticated, ordinarily by affidavit, just as if the affiant were laying the foundation for admitting the document through oral testimony at trial. See Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987); 10A Wright Miller, Federal Practice and Procedure § 2722 at 382-84 (3d ed. 1998). The lack of such a foundation must be raised by objection, however. As a practical matter, counsel often do not bother to include such authentication or to object to its absence when there is no real dispute about the authenticity of, for example, a letter that one of the counsel wrote.
Similarly, it is not unusual for counsel to submit deposition testimony in the form of copies of the cited pages. Strictly speaking, either side would be entitled to object and to insist that only the signed original transcript, properly certified by the court reporter, could be used either to support or oppose the motion. As a practical matter, however, with the implicit consent of all parties and the court, uncertified copies can be used to save time and money.
Nevertheless, when an objection is raised, the court must apply Rule 56(e) and sustain the objection. (The court need not act instantly, though, and it is not unusual for an unexpected objection to draw a prompt request by the exhibit's proponent to supplement the record with an authenticating affidavit.)
In this case, Elghanmi has provided no foundation, authentication, or certification for Exhibits 2 and 21 even after receiving the College's motion. Accordingly, the court grants Franklin College's motion to strike Exhibits 2 and 21.
II. Elghanmi's Motion to Strike
In response to Franklin College's summary judgment motion, Elghanmi submitted a statement of additional material facts and supported those assertions with citations to record evidence, as authorized by Local Rule 56.1. With its reply brief, Franklin College then submitted evidence in an effort to contest some of Elghanmi's factual assertions. Elghanmi has moved to strike this additional evidence.
When the party opposing a motion for summary judgment has submitted additional material facts, the moving party is entitled to argue either that the cited evidence does not support the asserted facts or that the cited evidence is not admissible. However, it is a complete waste of time for the moving party to come forward with conflicting evidence in an effort to "dispute" the non-moving party's factual assertions.
In deciding the motion for summary judgment, the court is required to consider the evidence in the light reasonably most favorable to the non-moving party. The moving party risks no prejudice by failing to "dispute" at the motion stage the non-moving party's factual assertions. Those assertions, if supported with admissible evidence, must be treated as true for purposes of the summary judgment motion, though not for any other purpose. See S.D. Ind. Local Rule 56.1(g). If the non-moving party seeks to establish a fact for other purposes, such as trial, the party may do so by filing his own summary judgment motion or by serving a request for admission under Rule 36.
Elghanmi seeks to strike paragraphs 146-149 of Franklin College's statement of additional evidence on reply, which attempt to contradict Elghanmi's factual submissions about "Math Day" and about whether a colleague served as an advisor to him. Without deciding whether the facts at issue are material, the court grants Elghanmi's motion to strike because the court must accept Elghanmi's factual assertions as true for purposes of the summary judgment motion.
III. Franklin College's Objection to Elghanmi's Opposition Papers
Local Rule 56.1 governs the manner in which parties must make factual submissions related to a summary judgment motion. Effective January 1, 1999, the rule was completely rewritten to establish rather specific and elaborate formal requirements. The current version of Local Rule 56.1 requires the moving party to set forth "numbered sentences with the contents of each sentence limited as far as practicable to a single factual proposition." S.D. Ind. Local Rule 56.1(a)(1) (f)(2) (2000). The asserted facts must be supported with appropriate evidence. S.D. Ind. Local Rule 56.1(f)(2). The opposing party may respond to those assertions with contrary statements of fact supported by citations to relevant evidence, again using the same format — numbered paragraphs of one sentence containing a single factual proposition.
S.D. Ind. Local Rule 56.1(b)(1) (f)(2). The opposing party also may submit a statement of additional material facts, in the same one-sentence format, with citations to appropriate evidence. See S.D. Ind. Local Rule 56.1(b)(1) (f)(2).
The formal requirements of Local Rule 56.1 were intended by their advocates to streamline the decision-making process for summary judgments by requiring the parties to identify disputed facts precisely, and to avoid the phenomenon of having the parties' papers seem like ships passing one another unseen in the night. See Pike v. Caldera, 188 F.R.D. 519, 521 (S.D.Ind. 1999) (Tinder, J.). The objective was to insist that parties focus their attention on relatively discrete and concrete factual propositions, and specify the evidence they relied upon either to establish or dispute those propositions.
Too often, however, Local Rule 56.1 can be self-defeating as parties submit hundreds of factual assertions in massive documents that generate scores and even hundreds of collateral disputes about relevance and/or admissibility, and especially about strict compliance with Local Rule 56.1. In this case, for example, where these collateral disputes are relatively modest in scale as compared to this judge's recent experiences, disputes under Local Rule 56.1 have generated disputes concerning about 50 of the separate assertions of material facts.
In its objection, Franklin College contends that many paragraphs in Plaintiff's Response to Defendant's Statement of Material Facts in Support of Summary Judgment Motion and in Plaintiff's Statement of Additional Material Facts violate Local Rule 56.1 because they express multiple factual propositions and because they are not supported by an appropriate evidentiary foundation. The college also argues that numerous paragraphs in Plaintiff's Response and in Plaintiff's Statement contain argument and immaterial facts. Specifically, Franklin College objects to paragraphs 21, 39, 60, 61, 63, and 73 of Plaintiff's Response and to paragraphs 88, 91-100, 102-107, 109-122, 124-133, and 135-143 of Plaintiff's Statement.
In light of these disputes, it is worth recalling both the purpose of Local Rule 56.1 and the fact that the rule expressly allows the court to excuse strict compliance with Local Rule 56.1 in the interests of justice or for good cause. S.D. Ind. Local Rule 56.1(k). The court has an obligation to interpret its rules to promote the just, speedy, and inexpensive determination of cases. See Fed.R.Civ.P. 1. In this case, although there are some issues as to strict formal compliance with Local Rule 56.1, the parties' submissions have served their intended purpose. Each side spelled out its view of the facts and identified clearly the record evidence relied upon to support those views. It would be a waste of time and energy to spend more time worrying about the issues of formal compliance. Pursuant to Local Rule 56.1(k), the court overrules Franklin College's objections to Elghanmi's submissions on the ground that they contain multiple factual assertions, argument, or immaterial facts. More detailed consideration of these matters in this case would turn the purpose of Local Rule 56.1 on its head by expanding the efforts far beyond those required to determine whether there is a genuine issue of disputed material fact for trial.
More significant are Franklin College's objections to a number of Elghanmi's additional facts as unsupported by admissible evidence. That type of objection goes to the heart of the summary judgment process. The court has considered those objections individually and sustains the College's objections to paragraphs 125 and 136. Paragraph 125 was supported with Exhibit 2, which has been stricken.
Franklin College also objected that some of the statements are not supported by "objective" evidence. The significance of this objection is not apparent to the court. Evidence is required to be based on personal knowledge, but a witness need not support his own testimony with additional, "objective" evidence.
Paragraph 136 cites no evidence and appears to consist only of argument or comment on facts. In all other respects, Franklin College's objections are overruled.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is not a substitute for a jury's determination about credibility or about whether a reasonable inference should be drawn from circumstantial evidence of a person's intentions. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Pafford v. Herman, 148 F.3d 658, 665 (7th Cir. 1998).
On a summary judgment motion, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir. 1983). Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 497 (7th Cir. 1999). However, the existence of "some alleged factual dispute between the parties," or "some metaphysical doubt" does not create a genuine issue of fact. Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See, e.g., Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 512 (7th Cir. 1996).
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In employment discrimination cases, as in all cases, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
Undisputed Facts
For purposes of Franklin College's summary judgment motion, the following facts are either undisputed or reflect the record in the light reasonably most favorable to Elghanmi, the non-moving party.
Defendant Franklin College is a not-for-profit corporation and is an accredited undergraduate, liberal arts college. Plaintiff Rahim Elghanmi is a native of Morocco and a Muslim. After completing degrees in Morocco and France, Elghanmi received his Masters and Ph.D. from Washington University in St. Louis in 1989. Elghanmi has worked as a lecturer at Southern Illinois University and Maryville College, and as a teacher at Washington University. Elghanmi began working at Franklin College as an Assistant Professor of Mathematics during the 1991-92 academic year in a tenure track position.
Franklin College's Promotion and Tenure Committee (the "Committee") reviewed Elghanmi's status in several years. In 1994 and 1995, the Committee recommended continued employment for Elghanmi "with reservations" about his teaching performance. Carlson Aff. ¶¶ 5-12; Exs. A B. The Committee then considered Elghanmi for tenure during the 1996-97 academic year. The Franklin College Faculty Handbook describes the criteria for tenure as follows:
The decision by the Board of Trustees to award tenure shall be made on the basis of sound evidence to those Faculty who have demonstrated excellence in teaching effectiveness, as well as in intellectual and professional development, and service to the College, and who show promise of potential for further growth and development.
Berger Aff. ¶ 8, Ex. A.
The Committee recommended that Franklin College deny Elghanmi promotion and tenure. Garner Aff. ¶¶ 8-9, Ex. A. In its written report, the Committee identified several reasons for its recommendation. The Committee stated that Elghanmi's colleagues continued to cite "problems with prioritization, organization, planning, initiative and the quality of his contributions to the math department and to the colleagues as a whole." Id. The Committee further noted that Elghanmi's teaching performance had been erratic over time and that he had difficulties, in particular, with a course that required knowledge of computer programming. The Committee had raised similar issues in its reviews of Elghanmi's performance for the 1993-94 and 1994-95 academic years.
Franklin College describes the employment decision at issue in this case as the denial of "promotion and tenure." (Emphasis added.) Assuming that the College is unlikely to award one without the other, for ease of reference, the court will refer only to tenure.
Summarizing the reasons for its recommendation to deny Elghanmi tenure, the Committee stated:
As for demonstrated excellence in teaching, service to the college, and promise of potential for further growth and development, we do not find sound and conclusive evidence that he has fulfilled the criteria for the award of tenure. Given that the primary consideration of the award of indefinite tenure is a long-term interest of Franklin College, we feel that the weight of the evidence obligates us to recommend against the award of indefinite tenure and promotion to Professor Rahim Elghanmi.
Garner Aff. ¶¶ 8-9, Ex. A.
The Committee's recommendation was subject to three layers of administrative review. First, Franklin College's vice president reviewed Elghanmi's tenure and personnel files and the Committee's recommendation. The vice president also visited Elghanmi's classroom. The vice president agreed with the Committee's recommendation to deny Elghanmi tenure. Second, Franklin College's president reviewed Elghanmi and agreed with the Committee's recommendation to deny Elghanmi tenure. The president also did not find any evidence of discrimination against Elghanmi based on his religion or national origin. Third, the Franklin College Board of Trustees reviewed the recommendations of the Committee, the vice president, and the president. By letter dated April 26, 1997, Franklin College informed Elghanmi that the Board had decided to deny him tenure.
Elghanmi filed a grievance with the Faculty Steering Committee. Among other things, Elghanmi alleged procedural errors and discrimination by the Committee. Following a hearing, the Grievance Committee issued its decision on the grievance on October 31, 1997, and concluded that there had been no unfair, arbitrary or illegal discrimination against Elghanmi.
However, the Grievance Committee did find that certain procedural errors had been committed. In particular, some materials had been omitted from Elghanmi's tenure file that the Committee had reviewed in making its recommendation against tenure. Although the Grievance Committee determined that the procedural errors could have negatively influenced the Committee's recommendation. The Grievance Committee recommended that Franklin College rescind the decision to deny Elghanmi tenure and conduct a second, independent tenure review.
As permitted by internal policies, Franklin College's new president rejected the Grievance Committee's recommendation and eventually implemented his own approach to address the procedural errors. At the president's instruction, the Committee reconvened to re-review Elghanmi's file, which included the previously omitted materials. Those additional materials did not persuade the Committee to change its original recommendation to deny Elghanmi tenure. After additional administrative review, which included a grievance hearing before the Executive Committee of the Board of Trustees, Franklin College advised Elghanmi that the it had affirmed its original decision not to grant him tenure. Elghanmi's employment at Franklin College ended in May 1998 at the conclusion of the 1997-98 academic year.
Although the Committee did not recommend tenure, its report recognized Elghanmi's strengths, noting his knowledge of mathematics, his increasing and effective rapport with students, and his willingness to spend time with students outside of class. Garner Aff. ¶ 8, Ex. A. Elghanmi's colleagues also acknowledged his contributions to enhancing the cultural diversity of Franklin College by organizing international trips for students. Id.
In addition to the qualities noted in the Committee's report, there was other information in his tenure file about Elghanmi's service to Franklin College, his scholarship, and his teaching abilities. In the area of service, Elghanmi represented Franklin College at Project Kaleidoscope, an organization involved with the undergraduate study of science and mathematics. Elghanmi Aff., ¶ 15. In connection with Project Kaleidoscope, Elghanmi worked on introducing an interdisciplinary course. Elghanmi Aff., ¶ 16. For seven years, Elghanmi assisted with "Math Day" at Franklin College. Elghanmi Aff. ¶ 17. Elghanmi also worked on changing the departmental major and minor; helped write grants for the department; and served as the Math/Computing Club Co-Advisor. Elghanmi Aff. ¶¶ 16-17.
In the area of scholarship, Elghanmi published his review of the book Differential Equations with Modeling and participated in a research paper published in the Journal of Differential Geometry and its Application. Elghanmi Aff. ¶ 16.
In the area of teaching, Elghanmi received several positive reviews from faculty during the tenure review process. See Elghanmi Ex. 17 (evaluating professor wrote: "I have no reservations about endorsing his promotion and tenure"); Ex. 18 (another evaluating professor wrote that Elghanmi was knowledgeable, organized, and prepared; tenure was recommended); Ex. 19 (another evaluating professor wrote that Elghanmi had performed competently; tenure was recommended); Ex. 20 (another evaluating professor described Elghanmi as "a strong and valuable faculty member" and made "strong" recommendation for tenure). Elghanmi also received praise from some of his students. See Elghanmi Ex. 16 ("Rahim is the best teacher I have at Franklin"; "Professor Elghanmi is a true asset to this college. He shows students that he truly cares, and he teaches this course exceptionally.").
Discussion
Title VII makes it an unlawful employment practice for an employer "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." 42 U.S.C. § 2000e-2(a)(1).
A Title VII plaintiff may prove his case through direct or indirect evidence. Because Elghanmi has not come forward with direct evidence of national origin or religious discrimination, the court analyzes his claims under the three-step pattern of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973). Under this model, a plaintiff must come forward with evidence of the four elements of a prima facie case: (1) he is a member of a protected class; (2) he was qualified for tenure; (3) he was denied tenure; and (4) an applicant not in the protected class was granted tenure. Namenwirth v. Board of Regents of University of Wisconsin, 769 F.2d 1235, 1240 (7th Cir. 1985); Vanasco v. National-Louis University, 137 F.3d 962, 965 (7th Cir. 1998). "The burden of establishing a prima facie case of disparate treatment is not onerous." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Franklin College describes the fourth element of the plaintiff's prima facie case differently, stating that Elghanmi can establish the final element by showing that "tenure positions in the Department of Mathematics at Franklin College were open at the time Elghanmi was denied tenure, in the sense that others were granted tenure in the department during a period relatively near to the time Elghanmi was denied tenure." Def. Br. at 3 n. 1. Because Franklin College admits that, for the purpose of its summary judgment motion, Elghanmi has satisfied all elements of the prima facie case except for the second element (the qualification prong), the court need not address this discrepancy.
The prima facie case is intended to identify circumstances in which a jury could infer that an employment decision, if not explained, was the product of illegal discrimination. Stockett v. Muncie Indiana Transit Systems, 221 F.3d 997, 1001 (7th Cir. 2000). However, if the employer can then merely articulate a legitimate, non-discriminatory reason for its decision, that step shifts the burden of proof and persuasion back to the plaintiff to show that the employer's stated reason is a pretext, that is, a false explanation for the decision. Id.
I. Elghanmi's Prima Facie Case
For purposes of its summary judgment motion, Franklin College admits that Elghanmi satisfies the first, third, and fourth elements of his prima facie case. Franklin College contends that, as a matter of law, Elghanmi cannot prove the second element of his prima facie case — that he was qualified for tenure. Franklin College argues that the court's review of its decision should be particularly restrained because a tenure decision is at issue. The Seventh Circuit recently summarized its approach to tenure cases:
[A]s we recently recognized, tenure decisions are often based on "the distinction between competent and superior achievement." [Kuhn v. Ball State University, 78 F.3d 330, 331 (7th Cir. 1996).] Such decisions necessarily rely on subjective judgments about academic potential. Experienced faculty members may well come to different conclusions when confronted with voluminous and nuanced information about a colleague's overall capacity to make a long-term institutional contribution. See Namenwirth v. Board of Regents of the Univ. of Wis. Sys., 769 F.2d 1235, 1243 (7th Cir. 1985), cert. denied, 474 U.S. 1061 (1986). Universities should not be allowed to use the subjective nature of the tenure process to camouflage discrimination. Congress did not intend that institutions of higher learning enjoy immunity from the Nation's anti-discrimination statutes. See Davis v. Weidner, 596 F.2d 726, 731 (7th Cir. 1979). However, we must not second-guess the expert decisions of faculty committees in the absence of evidence that those decisions mask actual but unarticulated reasons for the University's action.
Vanasco, 137 F.3d at 968.
The Seventh Circuit's comments on not second-guessing tenure decisions echoed a view it has repeatedly expressed regarding a variety of employment decisions in university and non-university settings alike. See, e.g., Kuhn v. Ball State University, 78 F.3d 330, 332 (7th Cir. 1996) (federal prohibition against age discrimination is not a merit selection program); Ghosh v. Indiana Dep't of Environmental Management, 192 F.3d 1087, 1093 (7th Cir. 1999) (court should not function like a "super-personnel department" in reviewing promotion decision at government agency). And although the Seventh Circuit has acknowledged the difficulty of evaluating tenure cases, the Seventh Circuit, unlike the First and Second Circuits, has not imposed different requirements on plaintiffs who seek to establish a prima facie case of discrimination based on a denial of tenure. Compare Vanasco, 137 F.3d at 965 (describing prima facie case elements set forth above), and Namenwirth, 769 F.2d at 1240, 1242-43 (describing prima facie case elements set forth above and discussing challenges that tenure cases present), with Banjeree v. Board of Trustees of Smith College, 648 F.2d 61, 63, 65 (1st Cir. 1981) (to establish prima facie case, plaintiff must prove his qualifications place him at least in the middle group of tenure candidates, but plaintiff established prima facie case), and Zahorik v. Cornell University, 729 F.2d 85, 93-94 (2d Cir. 1984) (to establish prima facie case, plaintiff must show that "some significant portion" of the department faculty, referrants or other scholars in the field agrees that she is qualified for tenure).
In Namenwirth, the Seventh Circuit affirmed a court's finding after trial that the plaintiff, a professor who had been denied tenure, had failed to prove sex discrimination. 769 F.2d 1235. However, the Seventh Circuit agreed with the trial court's finding that the plaintiff was sufficiently qualified for tenure to establish a prima facie case. Id. at 1242. The court explained: "Mere qualification depends on objective measures — terminal degree, number of publications, and so on." Id. The court further observed that a determination that the plaintiff is qualified for purposes of the prima facie case does not mean that it follows that plaintiff was entitled to tenure. "Tenure requires something more. . . ." Id.
By emphasizing that satisfying the qualification element of the prima facie case is not tantamount to proving that the tenure committee's decision was discriminatory, Namenwirth demonstrates that the plaintiff's initial burden on the issue of qualification for tenure is not a heavy one. See Schneider v. Northwestern, 925 F. Supp. 1347, 1368 (N.D.Ill. 1996) (fact that university reviewed plaintiff twice for tenure showed that she was sufficiently qualified to establish prima facie case), citing Namenwirth, 769 F.2d at 1240; see also Zahorik v. Cornell University, 729 F.2d at 93-94 (plaintiff can establish qualification element of prima facie case by showing only that "some significant portion" of the department faculty, referrants or other scholars in the field agrees she is qualified for tenure). At the summary judgment stage, the issue is simply whether a jury could reasonably find that the plaintiff was qualified for tenure when all factual and evidentiary disputes are resolved in favor of the plaintiff.
In Vanasco, neither the Seventh Circuit nor the district court separately addressed whether the plaintiff was sufficiently "qualified" for tenure to establish the second element of her prima facie case. See Vanasco, 137 F.3d 962. Instead, "'eschew[ing] a mechanistic application of McDonnell Douglas," the court considered whether the plaintiff was qualified for tenure as part of its analysis of whether the university's stated reason for denying tenure was a pretext for discrimination. Id. at 966 (citations omitted); see also Dugan v. Ball State University, 815 F.2d 1132, 1136 (7th Cir. 1987) (affirming summary judgment on pretext grounds without deciding whether plaintiff created a fact issue on qualification as part of her prima facie case). The court explained in Vanasco that the qualification element and the issue of pretext often focus on the same circumstances because the employer maintains that the employment decision was based on performance. Vanasco, 137 F.3d at 966.
Here, based on the scope of Franklin College's summary judgment motion, this court considers only whether a jury could reasonably find that Elghanmi was sufficiently qualified for tenure to establish the second element of his prima facie case. The court concludes that a jury could reasonably reach that conclusion.
First, some of Franklin College's own evidence tends to show that Elghanmi possessed at least the minimum qualifications required for tenure. In its tenure review, the Committee recognized Elghanmi's knowledge of mathematics, his positive relationships with students, and his leadership in organizing international trips. In addition, the Grievance Committee concluded that the procedural errors committed during the Committee's initial review might have affected the Committee's recommendation. All of this evidence would tend to support a jury's conclusion that Elghanmi at least met the minimum qualifications for tenure.
In addition, Elghanmi has come forward with further evidence that suggests he was sufficiently qualified for tenure to continue with this lawsuit. For example, Elghanmi's tenure file included several positive evaluations by his peers and by his students. In addition, Elghanmi participated in activities in service to the college and was involved to some degree in scholarship in his field.
Viewing the record evidence in the light most favorable to Elghanmi, a jury could reasonably find that Elghanmi had at least minimal qualifications for tenure. That is sufficient to satisfy the second element of the prima facie case. The court must therefore deny Franklin College's summary judgment motion on Elghanmi's Title VII claims. Although the parties obviously disagree about whether Elghanmi's performance record, as a whole, demonstrated the "sound evidence" of "excellence" required for the award of tenure, this question is not appropriate for resolution in analyzing the second element of Elghanmi's prima facie case.
In footnotes in its briefs, Franklin College has suggested there may be another basis for summary judgment: that even if Elghanmi could establish a prima facie case, he has no evidence that Franklin College's stated reason for denying him tenure was a pretext for discrimination. See Def. Br. at 15 n. 8 (Franklin College would be entitled to summary judgment because it had a legitimate, non-discriminatory reason for denying tenure); and Def. Reply Br. at 10 n. 5 (Franklin College demonstrated unequivocally that it had a legitimate reason for its decisions and Elghanmi has presented no evidence of pretext).
In deciding Franklin College's summary judgment motion, the court has not considered the issue of pretext. Franklin College stated clearly in its motion papers that it was raising only one issue on the merits: whether Elghanmi could establish the second "qualification" element of a prima facie case. The party moving for summary judgment has the burden of fully identifying and arguing the grounds on which the motion is based. The opposing party is not required to address arguments that the moving party might have raised, but did not. See, e.g., Malhotra v. Cotter Co., 885 F.2d 1305, 1310 (7th Cir. 1989).
Franklin College's suggestions in footnotes are not a sufficient basis to raise the issue of pretext squarely for decision at this point in the case. See, e.g., To-Am Equipment Co. v. Mitsubishi Caterpillar Forklift America, Inc., 152 F.3d 658, 663 (7th Cir. 1998) ("truncated presentation" of argument in footnote of brief waived the issue); Bonds v. Coca-Cola Co., 806 F.2d 1324, 1328 (7th Cir. 1986) ("collateral allusions to a legal issue do not require the court to decide difficult questions"); United States v. White, 879 F.2d 1509, 1513 (7th Cir. 1989) (argument raised in passing in a footnote deemed waived).
II. Punitive Damages
The Civil Rights Amendments Act of 1991 expanded the remedies available to a plaintiff under Title VII by providing that employers who intentionally discriminate against an employee may be subject to punitive damages. 42 U.S.C. § 1981a(a)(1). Punitive damages are available if the plaintiff shows the employer "acted with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). Although proof of egregious or outrageous discrimination is not necessary, a Title VII plaintiff must demonstrate that the employer discriminated "in the face of a perceived risk that its actions [would] violate federal law." Kolstad v. American Dental Ass'n, 527 U.S. 526, 536 (1999). Punitive damages require more than proof of intentional unlawful discrimination. EEOC v. Indiana Bell Telephone Co., 214 F.3d 813, 820 (7th Cir. 2000) (citation omitted), opinion vacated and rehearing en banc granted (7th Cir. Sept. 6, 2000). A plaintiff must show "that the defendant almost certainly knew that what he was doing was wrongful and subject to punishment." Id., quoting Soderbeck v. Burnett County, 752 F.2d 285, 291 (7th Cir. 1985).
Elghanmi has not responded to Franklin College's argument that summary judgment is appropriate on his request for punitive damages. The court is not inclined to develop arguments for a party. In the absence of opposition by Elghanmi, and based on a review of the summary judgment record in the light most favorable to Elghanmi, the court grants Franklin College's summary judgment motion on Elghanmi's request for punitive damages. Even if Elghanmi eventually proves discrimination, he has produced no evidence that Franklin College discriminated against him with malice or reckless indifference. Before Franklin College finalized its decision to deny Elghanmi tenure, Elghanmi availed himself of an extensive administrative review and grievance process that considered Elghanmi's complaint that he was the victim of unlawful discrimination. On this record, a jury could not reasonably conclude that the college's highest authorities "almost certainly knew that what [they were] doing was wrongful and subject to punishment."
Elghanmi's punitive damages claim fails as a matter of law.
Conclusion
For the foregoing reasons, Franklin College's motion for summary judgment is GRANTED with respect to issue of punitive damages and is DENIED in all other respects. Franklin College's motion to strike Elghanmi's exhibits 2 and 21 is GRANTED. Elghanmi's motion to strike paragraphs 146-149 of Franklin College's "Statement of Additional Evidence on Reply" is GRANTED. Franklin College's objections to Elghanmi's response to summary judgment are OVERRULED, except as to paragraphs 125 and 136 of Elghanmi's statement of additional material facts. The court will hold a scheduling conference on Friday, October 20, 2000 at 9:15 a.m. in Room 330, U.S. Courthouse, Indianapolis, Indiana, to set a new trial date.
So ordered.