Al-Hasan v. Milwaukee School of Engineering

Citations: 156 F. Supp. 3d 930; 2015 U.S. Dist. LEXIS 171321; 2015 WL 9451056Docket: Case No. 14-C-0611

Court: District Court, E.D. Wisconsin; December 22, 2015; Federal District Court

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Abdelnaser J. Al-Hasan, a Muslim and Palestinian former employee of the Milwaukee School of Engineering (MSOE), alleges discrimination under Title VII of the Civil Rights Act of 1964 due to MSOE's failure to promote him from a part-time adjunct position to a full-time faculty role, which he sought at the professor level. MSOE, a private university, does not have a tenure system, but full-time professors enjoy significant job protections, unlike part-time faculty or those classified as "Instructors." 

Al-Hasan applied for a position at MSOE in January 2007 and was hired as a part-time adjunct associate professor after Dr. Karl David, the mathematics department chair, recommended him despite being aware of his race, national origin, and religion. David indicated there would be a search for a new full-time professor during the 2007-08 academic year and suggested Al-Hasan would have an advantage if he applied, though no promises were made regarding the position.

During Al-Hasan's tenure, the department hired two full-time professors, both of whom held PhDs from the University of Wisconsin-Milwaukee (UWM), where Al-Hasan also earned his degree. Following these hires, Dr. Roger Frankowski, MSOE's Vice President of Academics, instructed Dr. David not to interview candidates from UWM for the next faculty vacancy, indicating a shift in hiring criteria to diversify credentials within the department. This email highlights a potential bias against candidates with degrees from UWM in the subsequent hiring process.

David was instructed to exclude the plaintiff from consideration for a full-time faculty position in 2007 due to a policy against hiring individuals with degrees from UWM. In correspondence with Dr. Frankowski, David expressed concerns about the part-time employee, Naser Al-Hasan, who sought a permanent role. Frankowski indicated that future openings would depend on retirements within the department. During the 2007 hiring process, the mathematics department did not consider any applicants, including those with UWM PhDs, ultimately recommending Dr. Chunping Xie, who was hired with no UWM affiliation.

Despite being classified as part-time faculty, the plaintiff taught full-time courses. Following the death of a faculty member's son in Iraq, the plaintiff sensed hostility within the department, which he believed was directed at him due to his ethnicity and religion. He alleged that Dr. David harbored a personal agenda against him. Another faculty member, Edward Griggs, reportedly defended the plaintiff's character to colleagues, although the plaintiff was unaware of the specifics of that conversation.

On June 17, 2010, Dr. David sent a controversial email to Congressman Mark Kirk regarding U.S. support for Israel, which he described as sarcastic criticism of Kirk's views. He forwarded this email to the plaintiff as an expression of solidarity, given the plaintiff's Palestinian background. However, the plaintiff was uncertain about the intent behind David's email.

During the plaintiff's tenure at MSOE, Dr. David displayed a Christmas card from a job applicant on the department bulletin board, which the plaintiff interpreted as potentially biased against Muslims. Dr. David, identifying as an atheist, claimed he posted the card to illustrate the absurdity of a greeting card potentially influencing the hiring committee. Additionally, Dr. David posted an advertisement for a faculty position in Alaska, which he suggested the plaintiff consider due to the area's fishing opportunities. The plaintiff, a passionate fly fisherman, perceived this remark as a hostile suggestion for him to relocate.

In May 2010, following an upcoming retirement in the mathematics department, the plaintiff expected to be offered the full-time position. He inquired via email about any hiring restrictions related to graduates from UWM, as he had faced rejection in a previous application due to such a policy. Dr. Frederick Berry had recently taken over as Vice President of Academics and was intended by Dr. David to discuss the UWM hiring restriction. However, on November 2, 2010, the plaintiff met with Berry and conveyed his belief that the UWM policy was the reason for not being hired. Berry allegedly indicated that with departmental support, he would advocate for the plaintiff's application, potentially bypassing the normal hiring process.

After learning about the meeting, Dr. David confronted the plaintiff, expressing frustration over the plaintiff's direct approach to Berry. Subsequently, Dr. David met with Berry, advocating for the removal of the UWM hiring restriction and support for the plaintiff's candidacy. Berry confirmed that if the department recommended the plaintiff, he would approve the hire and verified with the university president that hiring a UWM PhD was permissible.

On November 7, 2010, a faculty meeting in the mathematics department, called by Dr. David, resulted in a vote against converting the plaintiff's part-time position to full-time, with a majority favoring a search for other candidates. The plaintiff was absent during this meeting. Dr. David informed faculty that it was standard practice to conduct a search rather than promote an existing part-time instructor, a sentiment echoed by faculty members Griggs and Olmsted, who relayed that the school’s president, Viets, would not approve the conversion without a search. Post-vote, the plaintiff sought to file a discrimination grievance with MSOE's human resources but did not submit a written complaint, and HR did not communicate his inquiry to the mathematics department.

Despite the decision to conduct a search, the plaintiff applied for the full-time position and obtained letters of recommendation from five faculty members, who were also part of the selection committee. In March 2011, Dr. Berry received an anonymous letter claiming procedural impropriety regarding the recommendations from committee members, prompting him to question Dr. David about the matter. David acknowledged a conflict of interest and ultimately decided to cancel the search, which was supported by Berry, leading to no hires for the position in 2011.

On June 22, 2011, the plaintiff filed a discrimination complaint with the Wisconsin Equal Rights Division, alleging failure to promote based on race, religion, and national origin. Following this, Dr. David expressed surprise and concern regarding the complaint in an email. In fall 2011, the mathematics department re-advertised the full-time position, forming a new search committee of seven faculty members, including Dr. David, who narrowed the applicant pool from approximately 100 candidates to 40.

The committee selected four finalists from a group of 40 candidates for a faculty position, including the plaintiff and three white male candidates. All finalists participated in an identical evaluation process involving interviews and mock lectures. The plaintiff found the requirement for a mock lecture offensive, believing that his established teaching record should have sufficed, yet acknowledged that such a requirement was standard and that he was unaware of any exceptions for current faculty. He did not prepare for the mock lecture and claimed it was conducted irregularly due to a committee member bringing her daughter and another member asking an unhelpful question. 

The evaluation forms completed by the committee members yielded mixed results for the plaintiff, with three “yes” votes and three “no” votes, while one member abstained from voting on him or the other unsuccessful candidates. Dr. Anthony van Groningen, another candidate, received six “yes” and one “no” vote and was ultimately favored by the committee. Critiques of the plaintiff's mock lecture noted it was difficult to follow, while van Groningen's performance was consistently praised. Despite some positive feedback for the plaintiff, most comments leaned towards favoring van Groningen, leading Dr. David to recommend van Groningen for the position based on broad support from the committee.

After the decision, the plaintiff accepted a position at Newberry College in South Carolina and resigned from MSOE in July 2012. During his final days at MSOE, he interpreted a comment from Dr. David about giving his office to a high-school teacher as a sign of hostility.

In June 2012, the plaintiff filed a second EEOC complaint alleging that MSOE discriminated against him in promotion decisions based on race, religion, and national origin. In April 2013, after leaving MSOE and submitting his discrimination charge, Dr. David contacted the plaintiff to assert that he was not Jewish, countering the plaintiff's claim that David was Jewish. Following the EEOC's notice of right to sue in February 2014, the plaintiff initiated the current action. 

Under Title VII of the Civil Rights Act of 1964, discrimination based on race, religion, or national origin, as well as retaliation for complaints of such discrimination, is prohibited. The plaintiff claims MSOE's repeated failures to promote him to a full-time faculty position were discriminatory and retaliatory, particularly after he filed a complaint regarding the previous year's promotion search. MSOE has moved for summary judgment on these claims, which is warranted when there is no genuine dispute regarding material facts, allowing judgment as a matter of law.

Summary judgment considerations require viewing evidence favorably for the non-moving party, and claims are assessed using either the "direct" or "indirect" method of proof established in McDonnell Douglas v. Green. The direct method allows the plaintiff to provide direct evidence of discriminatory intent or a substantial circumstantial case pointing to such intent. The indirect method involves a structured analysis where the plaintiff must first establish a prima facie case: being a member of a protected class, being qualified for the position, being rejected for it, and that someone outside the protected group was promoted despite not being better qualified. If established, the employer must then provide a legitimate, nondiscriminatory reason for its actions, after which the burden shifts back to the plaintiff to show that the employer’s reason was a pretext for discrimination, which implies intentional deceit rather than mere error.

Summary judgment for the defendant is warranted if the plaintiff fails to establish a prima facie case or show a genuine dispute regarding the employer's neutral reason as mere pretext. The employment actions under scrutiny are: 1) the mathematics department's 2010 decision to seek a new full-time faculty member instead of promoting the plaintiff, 2) the cancellation of the 2010 search and re-posting of the vacancy in 2011, and 3) the hiring of van Groningen over the plaintiff for the full-time position. The plaintiff previously indicated that he would not pursue a claim regarding his exclusion from the 2007 search, conceding it during the motion to dismiss phase. Consequently, the 2007 exclusion cannot independently support his claims, although facts from that decision could potentially bolster claims of discrimination in later actions.

The plaintiff's exclusion from the 2007 search was due to a policy against hiring new faculty from UWM, which he does not connect to any discriminatory intent by Frankowski or others. Notably, Dr. David, whom the plaintiff accuses of having discriminatory motives, actually supported the removal of the UWM hiring restriction to allow the plaintiff's consideration for a position. Therefore, the circumstances surrounding the 2007 search do not substantiate claims of discrimination regarding the subsequent employment actions. The evaluation of the claim concerning the 2010 decision to conduct a search instead of promoting the plaintiff raises the question of whether it should be assessed through the direct or indirect method, with the plaintiff indicating an indirect approach. However, the indirect method is inapplicable here as no individual outside the protected classes received automatic promotion to the desired position.

The plaintiff argues he has established a prima facie case of discrimination through the indirect method by highlighting the promotion of Nancy Olmsted from part-time to full-time faculty without a search, claiming she received more favorable treatment due to being outside the protected class. However, Olmsted's promotion to an Instructor position lacks the benefits of a full-time professorship sought by the plaintiff, who admits the positions are distinct and did not desire the Instructor role. The plaintiff fails to demonstrate that MSOE promoted any part-time faculty to a full-time professorship without conducting a search and notes that promotions in 2007 for other faculty members occurred only after external searches. Consequently, Olmsted's promotion does not support a discrimination claim based on race, religion, or national origin, as MSOE consistently performed searches before such promotions, irrespective of these factors.

Although the plaintiff does not mention the direct method of proof concerning his failure-to-promote claims, he presents arguments that align with direct-method reasoning. He claims circumstantial evidence could suggest bias against Muslims and Palestinians by Dr. David, affecting the promotion decision. For a direct method claim, the plaintiff must show that a reasonable jury could conclude: 1) David held biases against Muslims, Palestinians, or Arabians, and 2) these biases influenced MSOE’s decision to conduct a search instead of promoting him automatically. Evidence is necessary since the search decision was a faculty-wide vote, and the plaintiff does not allege bias from other faculty members. Thus, he must utilize a “cat’s paw” theory, which requires showing that a biased employee influenced a decision-maker to enact discrimination. Ultimately, the plaintiff cannot avoid summary judgment under this method due to a lack of evidence indicating David's bias against the relevant groups.

The plaintiff presents several pieces of evidence suggesting that David exhibited bias against him, including: 1) the plaintiff's testimony about a perceived change in treatment after the death of Olmsted’s son, 2) comments from Griggs indicating that he clarified the plaintiff was not an “extreme Muslim” to other faculty, 3) David’s email to Congressman Kirk about the Israeli-Palestinian conflict, 4) the posting of a Christmas card from a job applicant on the bulletin board, 5) a job opening in Alaska that David suggested the plaintiff apply for, 6) a statement about potentially giving the plaintiff's office to a high school teacher, and 7) David’s attempts to assert that he is not Jewish. However, this evidence, both individually and collectively, fails to support a reasonable inference of bias. The plaintiff's feelings about a change in treatment lack specifics and do not constitute evidence of bias. Additionally, Griggs’s statement lacks context, and there is no indication that David showed bias based on religion. David's email criticizing Kirk's pro-Israel stance is interpreted as sarcasm rather than bias against Palestinians. The posting of the Christmas card does not imply bias against Muslims, nor does suggesting the plaintiff apply for a job in Alaska indicate bias against his ethnicity or religion. Overall, the evidence does not substantiate claims of bias against Muslims, Palestinians, or Arabians.

David's comments regarding a job opening and a suggestion to give the plaintiff's office to a high school teacher do not support an inference of discriminatory bias against the plaintiff based on race, religion, or national origin. The plaintiff failed to provide evidence indicating that David's actions were motivated by discrimination. David's attempt to clarify that he is not Jewish does not imply bias against Muslims, Palestinians, or Arabians; rather, it suggests he was concerned about being misidentified as Jewish. Consequently, without evidence of discriminatory animus, the court need not analyze whether David's actions were the proximate cause of the department's decision to conduct a search for the position in question.

The plaintiff argued that David's comments about departmental practices and the likelihood of approval from the school’s president could have influenced the faculty's decision. However, David's statements were based on factual information about common practices and did not involve any false or biased information about the plaintiff, which is necessary for establishing cat’s paw liability. Since David provided accurate information typical of a department chair's role, it raises questions about whether any alleged bias was a proximate cause of the department's decision.

Faculty members made independent decisions regarding whether to proceed with a search for a full-time faculty member, considering reasons provided by David, which were not influenced by his alleged bias. This independent evaluation could potentially sever the causal link between David's purported animus and any adverse employment decision. However, since it remains uncertain whether David's provision of unbiased information breaks this link, summary judgment is not granted on that ground. Instead, summary judgment is based on the absence of evidence indicating that David exhibited bias against Muslims, Palestinians, or Arabians.

Regarding the decision to defer the faculty search for one year due to the plaintiff submitting letters of recommendation from search committee members, the indirect method of proof is deemed inapplicable. The deferral resulted in no candidate being hired, making it impossible for the plaintiff to identify a comparator. The analysis of the plaintiff's claim is conducted under the direct method, which reveals no evidence that MSOE's decision was motivated by the plaintiff's race, religion, or national origin. The deferment was primarily attributed to concerns about a conflict of interest stemming from the recommendation letters.

The plaintiff does not allege that Berry, who deferred the search, had discriminatory motives or that he used the conflict of interest as a pretext for discrimination. The plaintiff acknowledges that only David was perceived to harbor discriminatory bias, but fails to provide sufficient evidence for a reasonable jury to accept this claim. Furthermore, even if David had discriminatory motives, there is no evidence indicating he influenced the decision to cancel the search, which was prompted by an anonymous report to Berry regarding procedural irregularities due to the recommendation letters. Therefore, a reasonable jury could not conclude that David's alleged bias was the cause of MSOE's decision to defer the search.

Lastly, the decision to hire van Groningen over the plaintiff following the 2011-12 search will be evaluated using the indirect method, which the plaintiff has chosen to rely upon in his arguments.

MSOE acknowledges that the plaintiff has established a prima facie case for discrimination. However, MSOE argues that it chose to hire van Groningen over the plaintiff due to greater support from the faculty search committee. The plaintiff alleges that this decision is a pretext for discrimination, claiming bias against him based on race, religion, and national origin, particularly by Dr. David, who allegedly influenced the committee's vote against him. The court finds no evidence that Dr. David harbored prejudice against the plaintiff or that his influence was sufficient to sway the committee’s decision. The plaintiff has not demonstrated that other department members or MSOE's leadership acted with bias against him. Additionally, although the plaintiff suggests that faculty members were intimidated by Dr. David, he offers no supporting evidence of intimidation or coercion affecting the committee's vote. The plaintiff also finds it suspicious that he received negative votes from faculty who had previously recommended him; however, one recommender was not on the committee, and the majority of those who were voted in favor of him. The court concludes that the plaintiff’s claims do not meet the burden of proof required to establish that MSOE's decision was based on discriminatory motives.

The plaintiff claims that his non-selection for a full-time position at MSOE was retaliatory, stemming from his EEOC complaint filed in June 2011. To succeed under the direct method of proving retaliation, the plaintiff must show that he engaged in protected conduct, suffered an adverse employment action, and established a causal connection between the two. There is agreement that the plaintiff's EEOC complaint constitutes protected conduct and that the failure to promote him was an adverse action. The key issue is whether there is a causal link between the complaint and the promotion decision. The plaintiff alleges that David, the department chair, had a retaliatory motive and influenced the search committee against him. However, the evidence does not support that David influenced the committee's voting or acted with retaliatory intent. An email from David, which sarcastically mentioned the plaintiff's complaint, does not imply a retaliatory motive but rather suggests disbelief in the complaint’s validity. As a result, MSOE is granted summary judgment on the retaliation claim. The court notes that while the defendant argues that certain actions were not adverse, it assumes for argument's sake that they are. The admissibility of a statement made by Griggs regarding faculty discussions is questioned, but ultimately deemed unnecessary to resolve, as it does not bolster the plaintiff's case. The motion for summary judgment is granted, and final judgment is entered.

MSOE argues that the plaintiff lacks personal knowledge regarding a meeting since he was not present and is relying on hearsay from faculty members who attended. The plaintiff counters that these statements are not hearsay as they were made by MSOE employees within the scope of their employment, citing Fed. R. Evid. 801(d)(2)(D). The court finds it debatable whether those statements fall within the scope of employment but assumes, for the motion's purposes, that they are admissible. The plaintiff has not provided evidence that other MSOE departments have promoted internal candidates to full-time positions without conducting searches. Viets, in his declaration, asserts he never supported converting part-time faculty to full-time without a national search. In November 2010, the plaintiff reported to MSOE's human resources that he believed the search process for a full-time position was discriminatory, but he does not allege retaliation for this complaint. Furthermore, there is no evidence that those involved in hiring van Groningen in 2012 were aware of the plaintiff's human resources complaint, which would entitle MSOE to summary judgment on any retaliation claim.