Opinion
21-2696
03-16-2022
ABD-EL-ILLAH SERIR, Plaintiff-Appellant, v. COMMUNITY COLLEGE DISTRICT NO. 514, Defendant-Appellee.
NONPRECEDENTIAL DISPOSITION
Submitted March 10, 2022 [*]
Appeal from the United States District Court for the Central District of Illinois. No. 20-cv-1031, Michael M. Mihm, Judge.
Before DIANE P. WOOD, Circuit Judge, MICHAEL Y. SCUDDER, Circuit Judge, CANDACE JACKSON-AKIWUMI, Circuit Judge.
ORDER
Abd-El-Illah Serir worked as an adjunct professor in the computer science department at Community Central College District No. 514, which the parties refer to as Illinois Central College (ICC). ICC discontinued Serir's employment after the fall 2017 term, and Serir sued it for employment discrimination. See 42 U.S.C. § 2000e; 29 U.S.C.§ 621. The district court entered summary judgment for ICC, ruling that claims were untimely, unexhausted, or lacked evidence. We affirm.
Serir's relationship with ICC began in 2014. He applied then for a tenure-track job, but ICC declined to hire anyone after the number of applicants was low. ICC later hired him as an adjunct professor on a semester-by-semester basis, beginning with the spring 2015 term. As a Muslim, Serir needed space for his prayers. He asked the dean for a private office to pray alone in, but she declined the request. Serir prayed alone in an empty classroom and empty library rooms.
As early as Serir's second semester of work, in spring 2017, his relationship with ICC began to decline. First, Serir applied for the reopened tenure-track position, but in May 2017 ICC cancelled the search after it again received too few applicants. Serir took the cancellation personally after a faculty member involved in the search told him "do not expect too much [from ICC] toward your retirement" and faulted Serir's "personality" for his inability to win the position. Second, ICC received complaints about his adjunct teaching. They ranged from criticisms of the workload he assigned to his lack of responsiveness to students and a bias against women. The dean assigned two mentors to observe Serir's classes and provide feedback. Serir resented their oversight.
Serir's relationship with ICC continued to decline through his final semester of work in fall 2017. After ICC again posted a tenure-track position in December 2017, Serir unsuccessfully applied for it. ICC awarded the job to another candidate, who was 51; Serir was 54. During his interview, the dean mentioned "the amount of time it would take to obtain tenure." Two female professors privately noted that Serir called only the male faculty members "professors." Suspecting from the dean's post-interview demeanor that he was not going to receive the job, Serir complained to the human resources department. He alleged discrimination against him based on his age and "ethnicity." Later, Serir was not rehired as an adjunct. The college cited the ongoing student complaints, his lack of receptiveness to mentorship, and the two occasions where he raised his voice with the dean's assistant.
Serir responded with litigation. In July 2018, he filed a charge with the Equal Employment Opportunity Commission. Serir checked the boxes for discrimination based on religion, age, and retaliation. He then wrote:
I was hired by Respondent in or around December 2014. My current position is part-time Computer Networking Adjunct Faculty. Respondent has failed to promote me into a full-time position for which I applied and
am qualified. On or about December 7, 2017, I complained to Respondent. Thereafter, Respondent has failed to assign me to teach any classes.
I believe I have been discriminated against me because of my age, 54 (YOB: 1963), and in retaliation for engaging in a protected activity, in violation of the Age Discrimination in Employment Act of 1967, as amended.
I believe I have been discriminated against me because of my religion, Muslim, and in retaliation for engaging in a protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended.
The EEOC provided Serir a right-to-sue letter, and Serir filed this lawsuit in the district court, invoking Title VII and the Age Discrimination in Employment Act. See 42 U.S.C. § 2000e; 29 U.S.C. § 621. As he did at the EEOC, Serir alleged that ICC denied him the tenure-track job, a private office for prayers, and another semester as an adjunct because of his religion and age, and to retaliate for his internal complaint of discrimination. He also added that these actions were based on his national origin, which he describes as "Arab."
The district court entered summary judgment for ICC. It ruled, first, that claims based on the denial of his first two tenure-track applications (2014 and May 2017) were untimely. Second, his national origin claim failed because Serir did not exhaust it in his EEOC charge. For the remaining claims, the court concluded that Serir did not present evidence that would allow a jury to find that ICC's hiring decisions reflected unlawful discrimination or retaliation.
On appeal, Serir first contends that the district court wrongly dismissed as untimely his claims about the denial of his first two applications for the tenure-track position. To file suit under Title VII and the ADEA, charges must be filed with the EEOC within 300 days of an unlawful employment action. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(B). Serir filed his charge in July 2018; that is far more than 300 days after the first denial in 2014 and the second denial in May 2017. Serir responds that his EEOC charge should be dated from May 8, 2018, when he first approached the EEOC. But timeliness is tied to the date that the charge is filed. See id. In any case, even May 2018 is more than 300 days after the second denial in May 2017. These claims are thus time-barred. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).
Next Serir contests the district court's ruling that he did not exhaust his discrimination claim based on national origin. A plaintiff has exhausted only those claims that are "like or reasonably related" to the allegations raised in the EEOC charge. Chaidez v. Ford Motor Co., 937 F.3d 998, 1004 (7th Cir. 2019). Recognizing that his EEOC charge does not mention national origin, Serir argues that, in this case, his religion as a Muslim "correlat[es]" with his national origin, which he describes as Arab. We will assume that, depending on the details, claims of discrimination based on religion and national origin can overlap. But Serir's charge did not mention any details about anti-Muslim discrimination that he faced. He thus gave neither the EEOC nor ICC reason to think that a national origin claim would "grow out" of an investigation of the allegations in his claim of religious discrimination. See Vela v. Vill. of Sauk Vill., 218 F.3d 661, 664 (7th Cir. 2000). Serir replies that his EEOC charge incorporated his complaint to ICC's human resources department of discrimination based on his "ethnicity." But the EEOC charge does not mention or attach that letter; thus this argument is unsupported by the record.
That brings us to Serir's remaining claims of age and religious discrimination, and retaliation regarding the denial of his final application for the tenure-track position, ICC's decision not to rehire him, and the lack of a private office for prayers. We can analyze these claims under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff carries the initial burden of establishing a prima facie case; if the plaintiff does so, the burden shifts to the employer to offer a nondiscriminatory motive, and, if the employer does so, the burden shifts back to the plaintiff to show that the employer's stated reason was a pretext. Id. at 802-04.
We begin with the denial of Serir's third application for the tenure-track job. Serir fails to establish a prima facie case because he does not assert (let alone show) that the successful applicant was non-Muslim, substantially younger than Serir, or had never complained about discrimination. See Marnocha v. St. Vincent Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 719 (7th Cir. 2021) (age); Khungar v. Access Cmty. Health Network, 985 F.3d 565, 573 (7th Cir. 2021) (religion); Harper v. C.R. England, Inc., 687 F.3d 297, 309 (7th Cir. 2012) (retaliation). True, the successful applicant is three years his junior. But that small age gap is not enough for a prima facie case of age discrimination. See Bennin Ton v. Caterpillar Inc., 275 F.3d 654, 659 (7th Cir. 2001) (five-year difference insufficient).
Second, McDonnell Douglas to the side, Serir's evidence would not permit a reasonable jury to conclude that ICC denied Serir's final application because of his age. See Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). He cites the statements from the faculty member who said, in the context of his second application, "do not expect too much [from ICC] toward your retirement" and his "personality" is a problem. But even if the first comment alludes to his age (the second comment plainly does not), it is insufficient because Serir does not assert that this member had any role in his third application. He also cites a statement from the dean who referred to how long it takes to obtain tenure. But again, even if this comment alludes to age, given the successful applicant's similar age, the comment does not permit an inference that ICC refused to hire him because of his age. See Igasaki v. Illinois Dep't of Fin. & Pro. Regul., 988 F.3d 948, 961 (7th Cir. 2021).
Likewise, a jury could not find that ICC discriminated against him because he is a Muslim. Regarding the tenure-track job, Serir cites the two female professors who said that during his interview he called only the male faculty "professors." But Serir does not explain how this observation reflects religious hostility. Similarly, the dean's refusal to give him a private office does not reflect religious hostility or suggest that ICC refused to rehire him as an adjunct because he is a Muslim. He does not dispute that he could, without interference, pray alone in private spaces. He also does not dispute ICC's contention that it does not give any other adjunct faculty a private office. An accommodation for a religious practice "need not be the employee's preferred accommodation or the accommodation most beneficial to the employee." See Porter v. City of Chicago, 700 F.3d 944, 951 (7th Cir. 2012).
Finally, Serir did not present sufficient evidence to allow a jury to find that the college did not hire him for the tenure-track position, and did not rehire him as an adjunct, to retaliate for internally complaining about discrimination. Serir needed to furnish evidence that would permit a factfinder to infer that, without his complaint to human resources, ICC would have placed him in either of those positions. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). The only evidence that Serir has presented of causation is sequential timing: both hiring decisions occurred after his internal complaint. "Suspicious timing is rarely enough to create a triable issue," see Khungar, 985 F.3d at 578, and it is not enough here to show that Serir's complaint to human resources caused ICC's hiring decisions. ICC explained that it based its decisions on the undisputed evidence of complaints from students about Serir's lack of responsiveness and gender bias, among other work-performance problems. Serir speculates that the college fabricated these complaints and never seriously considered him for the tenure-track job. But speculation is not rebuttal evidence. See Igasaki, 988 F.3d at 961.
Serir raises other arguments on appeal, but they are defective for the reasons explained above.
AFFIRMED.
[*] We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. Fed. R. App. P. 34(a)(2)(C).