United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Argued May 31, 2022 

Decided June 13, 2022 

Before 

MICHAEL Y. SCUDDER, Circuit Judge 

AMY J. ST. EVE, Circuit Judge 

THOMAS L. KIRSCH, Circuit Judge

No. 21-3176 

NIGEL NOLL, 

 Plaintiff-Appellant, 

v. 

BOARD OF REGENTS OF THE 

UNIVERSITY OF WISCONSIN 

SYSTEM, et al, 

 Defendant-Appellee.

 Appeal from the United States District 

Court for the Western District of 

Wisconsin. 

No. 20-cv-293 

Barbara B. Crabb, 

Judge.

O R D E R

The Americans with Disabilities Act and the Rehabilitation Act protect disabled 

individuals against discrimination and retaliation. Nigel Noll alleged violations of both 

statutes after being dismissed from a Ph.D. program at the University of WisconsinMadison. When the case reached summary judgment, Noll shouldered an obligation to 

produce evidence from which a jury could infer a causal link between his acknowledged 

disabilities and complaint about discrimination and dismissal from the graduate 

program. The district court concluded that Noll failed to carry this burden. We agree and 

affirm. 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 21-3176 Page 2 

I 

A 

Nigel Noll intended to earn a Ph.D. when he enrolled as a graduate student in the 

University of Wisconsin-Madison’s Department of Educational Psychology in the fall of 

2014. And for three years, everything went according to plan: Noll excelled in his classes, 

worked as a teaching assistant, and did research in a lab run by his advisor, Dr. Haley 

Vlach. 

But the outlook for his Ph.D. candidacy started to change in 2017. Typically, the 

Department’s faculty votes to admit a graduate student into the program only after the 

student successfully writes and defends a master’s thesis. Ideally students do so within 

three years. Aspirational deadlines in summer and fall 2017 came and went, with Noll 

sending several underdeveloped drafts of his thesis to Dr. Vlach and another advisor, Dr. 

Chuck Kalish. By January 2018, both advisors had grown concerned about Noll’s halting 

progress. 

 In February 2018, Noll met with Drs. Vlach and Kalish and requested an additional 

two weeks to complete his thesis as he worked to manage a change in his medication. 

Drs. Vlach and Kalish readily agreed to the extension. Noll did not tell either advisor that 

the accommodations were related to his long-standing diagnoses for bipolar disorder and 

ADHD. 

 Noll eventually completed and defended his thesis in late May 2018. Dr. Vlach met 

with him after the presentation and informed him that, while he had done a good enough 

job to earn his master’s degree, his thesis lacked clarity and precision and reflected an 

ongoing struggle to apply theoretical principles to his practical research. Dr. Vlach also 

told Noll that she had decided to withdraw as his advisor, as she no longer believed she 

could be an effective academic and career mentor. Dr. Vlach went further and informed 

Noll of her concern that he would not pass the Ph.D. program’s required preliminary 

examination if he chose to test on topics related to the research he had performed in her 

lab. 

 Shortly after this meeting, Noll met with Dr. B. Bradford Brown, chair of the 

Department of Educational Psychology, and complained that Dr. Vlach had 

discriminated against him based on his disability. Noll pointed to two decisions that postdated his disclosure of his disability: the Department’s denial of his application for a 

teaching assistant position for the 2018–2019 academic year and Dr. Vlach’s withdrawal 
No. 21-3176 Page 3 

as his advisor. Dr. Brown investigated Noll’s concerns and spoke with each member of 

Noll’s thesis committee, but ultimately found no merit to the allegations of disability 

discrimination. 

 Dr. Brown then put Noll’s ongoing admission to the Ph.D. program to a faculty 

vote in mid-July 2018. Before the meeting, Dr. Brown helped Noll find a different faculty 

member willing to serve as his advisor for the remainder of his program. At the 

meeting—and without saying a word about Noll’s disability—Dr. Brown gave the voting 

faculty an overview of Noll’s background and performance in the program. For her part, 

Dr. Vlach also answered a few specific questions that the faculty had about Noll’s 

academic abilities and offered her own view that he had been slow to learn key concepts 

and missed important deadlines throughout his first four years in the program. The 

faculty then voted 12-1 against Noll’s continued enrollment in the Ph.D. program. Only 

thirteen of the fifteen faculty members at the meeting voted, with Dr. Vlach later 

testifying that she abstained from casting any vote. 

B 

 In 2019, Noll filed suit against the Board of Regents and Drs. Vlach and Brown 

alleging discrimination and retaliation under the Americans with Disabilities Act, 

42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. In its 

summary judgment opinion and order, the district court dismissed Noll’s claims against 

Drs. Vlach and Brown, explaining that individuals are not proper defendants under 

either enactment. The district court also entered summary judgment for the Board, 

concluding that Noll failed to identify any evidence permitting the inference that the 

Board made any of the challenged decisions because of his disability or in response to his 

complaint of discrimination. 

Noll now appeals. 

II 

A 

 We begin with two threshold matters that frame the scope of Noll’s appeal. 

First, Noll’s claim that Dr. Vlach’s decision to withdraw as his academic advisor 

amounted to disability discrimination is not part of this appeal. The parties litigated this 

issue in the district court, which thoroughly analyzed it in a well-reasoned decision. In 

our court, though, Noll’s opening brief discussed Dr. Vlach’s withdrawal not as a 
No. 21-3176 Page 4 

standalone claim, but instead as part of the larger (and in his view, escalating) sequence 

of events leading to his dismissal from the Ph.D. program. Because Noll does not press 

the claim on appeal, it is abandoned. 

Second, and inversely, Noll tries on appeal to broaden his theory of disability 

discrimination by urging that his dismissal from the program amounted to an adverse 

event for purposes of both his discrimination and retaliation claims. But he never 

advanced that claim and theory of liability in the district court, which analyzed his 

dismissal solely through a retaliation lens. It is too late in the litigation for Noll to reframe 

his claims. See, e.g., Mahran v. Advocate Christ Med. Ctr., 12 F.4th 708, 713 (7th Cir. 2021) 

(explaining that issues raised for the first time on appeal are waived). 

B 

That leaves just two claims for our review: that the Department of Educational 

Psychology’s failure to hire Noll as a TA for the 2018–2019 academic year constituted 

disability discrimination, and that the faculty’s decision to discharge him from the Ph.D. 

program reflected retaliation for Noll’s complaints about disability discrimination. After 

taking our own close look at the summary judgment record, we agree with the district 

court that Noll failed to develop sufficient evidence permitting a jury to find in his favor 

on either claim. 

At summary judgment, a court must “consider all of the evidence in the record in 

the light most favorable to the non-moving party” and “draw all reasonable inferences 

from that evidence in favor of the party opposing summary judgment.” Donald v. Wexford 

Health Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020) (internal quotations omitted). But the 

non-moving party cannot sit back and rest solely on its briefing in opposition for its 

claims to advance to trial. Rather, “as the now familiar trilogy of 1986 cases from the 

Supreme Court established, if the non-movant does not come forward with evidence that 

would reasonably permit the finder of fact to find in her favor on a material question, 

then the court must enter summary judgment against her.” Waldridge v. Am. Hoechst Corp., 

24 F.3d 918, 920 (7th Cir. 1994) (emphasis in original) (citing Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574 (1986), Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). 

Noll fell short of meeting this evidentiary burden at summary judgment. He insists 

that his failure to secure a TA position in the Department of Educational Psychology for 

the 2018–2019 academic year was a product of disability discrimination. The Board 

accepts that Noll has a diagnosed disability and that his being passed over for this 
No. 21-3176 Page 5 

particular TA position constituted an adverse action. But both the ADA and the 

Rehabilitation Act, the Board rightly emphasizes, “require[] proof of causation” in 

disability discrimination claims—“both statutes prohibit discrimination against 

individuals ‘by reason of’ the disability, or ‘on the basis of’ the disability.” A.H. by 

Holzmueller v. Ill. High Sch. Ass’n, 881 F.3d 587, 593 (7th Cir. 2018). So to survive summary 

judgment, Noll had to come forward with evidence sufficient to create a material dispute 

of fact as to whether, but for his disability, he would have been selected for the TA 

position. See id. at 593–94. 

He did not. In May 2018, Dr. Vlach told Noll that the Department of Educational 

Psychology made TA decisions based on a range of factors, including whether applicants 

had prior teaching experience and their status in the graduate program. She further 

explained to Noll that his having fallen behind in the preparation of his master’s thesis 

and prior service as a TA resulted in his being placed on a waitlist for the position. 

As Noll views the facts, Dr. Vlach’s reference to the timeliness of his progress 

through the graduate program shows discrimination against him in the TA selection 

process. On this view, Dr. Vlach accommodated his disability by affording him two extra 

weeks to complete his thesis, but then turned around and held that extra time against 

him when he applied for a TA position. In short, Noll sees Dr. Vlach as engaging in a baitand-switch that amounted to disability discrimination. 

The summary judgment record does not support such an inference, even when 

viewed in the light most favorable to Noll. Noll was nearly an entire year behind schedule 

in defending his master’s thesis by the time he applied for the TA position. His disability 

accommodation only accounted for two of those approximately fifty-two weeks, and Noll 

has not offered any evidence that but for the two-week extension the Department would 

have selected him as a TA. 

Even if Noll had done enough to establish a prima facie case of causation, he has 

not identified any evidence creating a factual dispute about whether the legitimate, nondiscriminatory reasons Dr. Vlach and the Board gave for why he was waitlisted—that he 

had already worked as a TA, that he was in the later stages of his program, and that he 

had a good history of funding—were pretextual. See, e.g., Novak v. Bd. of Trs. of S. Ill. Univ., 

777 F.3d 966, 974, 976 (7th Cir. 2015) (explaining that, to show pretext, a plaintiff “must 

demonstrate that th[e] reason constitutes a mistruth—a lie on the part of the defendants”). 

Noll’s retaliation claim suffers from the same evidentiary shortcoming. He 

contends that the faculty’s 12-1 vote to discharge him from the Ph.D. program reflected 
No. 21-3176 Page 6 

retaliation for his May 2018 complaint to Dr. Brown about Dr. Vlach’s alleged 

discrimination—a protected activity under both the ADA and the Rehabilitation Act. But 

here, too, there is a dearth of evidence in the summary judgment record on causation. 

“To establish a causal relationship between the protected activity and [an adverse action], 

a plaintiff must show that the decisionmaker was aware of the protected activity at the 

time the alleged retaliation occurred.” Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 124 

(7th Cir. 2021) (explaining causation in the related Title VII context). 

The parties agree that neither Dr. Vlach nor Dr. Brown disclosed to the 

Department’s faculty that Noll had a disability or sought a two-week extension as an 

accommodation. And the record is equally clear that Brown did not disclose Noll’s 

discrimination complaint to any faculty member he spoke to while investigating the 

allegations. Even taking the record evidence in the light most favorable to Noll, then, the 

district court properly entered summary judgment for the Board on Noll’s retaliation 

claim. The voting faculty could not have been retaliating against Noll for making a 

complaint they knew nothing about. 

Noll’s allegations of ADA and Rehabilitation Act discrimination and retaliation 

needed only be plausible to get to discovery. But by the time his case reached summary 

judgment, more was required. Rule 56 places a comparatively low evidentiary burden on 

non-movants opposing summary judgment, but Noll did not carry it as to either his 

discrimination or retaliation claim. And so we AFFIRM.