### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3367

T OLLIE C ARTER , Plaintiff

- Appellant

,

v.

C HICAGO S TATE U NIVERSITY , B IJESH T OLIA , and F ARHAD S IMYAR , Defendants

- Appellees

.

____________________ Appeal from the United States District Court for the Northern District of Illinois

, Eastern Division. No. 10 CV 00321

— Rebecca R. Pallmeyer

, Judge

.

____________________

A RGUED S EPTEMBER 30, 2014

— D ECIDED F EBRUARY 11, 2015

____________________

Before E ASTERBROOK , K ANNE , and H AMILTON , Circuit Judges

. K ANNE , Circuit Judge

. Plaintiff Tollie Carter appeals the district court’s grant of summary judgment for defendants Chicago State University (“CSU”) and Farhad Si myar. He argues that CSU and Simyar retaliated against him in viol ation of the Family Medical Leave Act (“FMLA”) and Section2 No. 13

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1981 of the Civil Rights Act of 1866 (“Section 1981”) by not appoint ing him acting department chair of CSU’s Depar tment of Accounti ng and Finance in November of 2008. Carter also claims that the district court abused its discretion in denying his motion to reconsider its grant of summary judgment. For the reasons expressed below, we affirm the judgment of the district court.

I. B ACKGROUND Carter holds a master of business administration degree (“MBA”) and is a certified public accountant (“CPA”). CSU ’s College of Business hired him in 1986 as a temporary assi stant professor in the Departm ent of Accounting and Finance. In 1992, CSU granted Carter tenure and promoted him to associate professor. In Janu ary 1995, he was appointed d epartment c hair, and he held that position until June 19 96, when he was removed by the university p resident. Since that time, he has held the pos ition of associate professor. Carter is an African

- American male.

There are two other relevant actors in this story. S imyar joined CSU as d ean of the College of Business in July 2005 and served in that capacity through January of 2010. D efendant Bijesh Tol ia began working at CSU in 1997. In the fall of 2007, he was promoted from his prior position as a department c hair to a ssoci ate d ean of the College of Bus iness.
A. Carter’s Prior Lawsuit CSU offers its faculty the option to teach summer cour ses, contingen t on the department’s budget, program needs, student interest, and a rotation list of professors who timely submit requests to teach specific classes. The list changesNo. 13

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yearly depending on prior assignments, and it gives some preference to professors who ar e within four years of retir ement. The d epart ment c hair matches available professors with offered course s, subject to approval by the d ean and a university

- wide summer school committee. In the summers of 2006 and 2007, Carter was assigned to teach some, b ut not all, of the courses he requested.

L ikewise, CSU assigns professors their courses for the fall and spring semester s based on teaching preferences, d epartmental need, and student demand. During the spring semester of 2007, CSU assigned Carter to teach Accounting
213 , which met on Thursday evenings

. Carter did not take well to that assignment. B eginning on Janu ary 11, 2007, Carter called in sick every Thursday and did not teach any of his courses that met that day. Following numerous communications rega rding his absences, Carter met with CSU administrators on April 10. During that mee ting, Carter blamed his refusal to teach the Thursday classes on CSU’s failure to accommodate his sleep apnea. After the meeting, he began teaching some of his Thursday cour ses, but continued to refuse to teach Accounting 213. Cons equently

, CSU’s Assistant V ice President Debrah Jefferson recommended that Carter be sanctioned a certain percentage of his salary.

Carter’s course assignments, among other complaints, formed the ba sis of a lawsuit he filed against CSU in August of 2007 (“ Carter I ”). There, Carter alleged that CSU was di scriminating against him on the basis of race, gender, and disability in violation of Ti tle VII of the Civil Rights Act of 1964 (“Title VII”)

, Sectio n 1981 , and the Americans with Di sabilities Act (“ADA”) . He later amended his complaint to4 No. 13

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include Simyar and Tolia as individual defendants in the Section 1981 claim. In 2011, the district court entered su mmary judgment against Carter on all but one of hi s claims, and the parties settled the remaining claim in June of 2012.
B. Spring 2008 FMLA Leave During the spring semester of 2008, Carter was sche duled to teach four courses. On January 22, after the start of the semester, Carter requested leave under th e FMLA to care for his mother. CSU granted the request, and Carter took FMLA leave from January 29 through March 20, 2008. CSU hired a part

- time professor to teach one of Carter’s classes, and other professors within the Department taught the r emaining three. When Carter returned from leave, CSU a ssigned him non

- teaching duties for the remainder of the s emester. Carter initially objected to the assignment, but he and CSU mutually resolved the dispute by mid

- April of
2008

. C. Chair and Acting Chair Appoin tments In April 2008, CSU’s Department of Accounting and F inance began t he process of appointing a new department chair. A c hair appointment at CSU occurs through a multi

step procedure . First, the faculty votes to reco mmend a ca ndidate. Second, the d ean o f the College of Business reviews the faculty vote and determines whether he concurs with the faculty’s selec tion. The d ean then forwards the results of the faculty vote, along with his recommendation for the sele ction, to the provost. The provost and univ ersity p resident then discuss the appoint ment. The p resident ultimately d ecides who will be appoint ed chair, but usually follows the d ean’s recommendation.No. 13

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Carter and another professor, Dr. Ernest Coupet, submi tted their names as candidates for the faculty vote . Carter and Coupet tied in the faculty election, each earning four votes. After the vote, Coupet withdrew from consideration in ord er to promote unity within the d epartment. Dean Simyar was not willing to rec ommend Carter to the p resident, however,

a nd he asked Coupet to reconsider his candidacy. Simyar told Coupet that , if needed, Simyar would seek to fill the p osition wit h a candidate from outside the d epartment, rather than recom mend Carter. Coupet agreed to resubmit his name, and Simyar recommend ed Coupet to President Elnora
Danie ls. Daniels selected Coupet as c hair in May 2008. Simyar explained his lack of support for Carter’s candid

acy by citing a policy

— either of CSU or of President Da niels

— that the Chair should hold a PhD or other terminal d egree. Daniels had previously rejected several candidates for other department chair positions because they lacked term inal degrees. Coupet held a PhD, and Carter held an MBA, which is not a terminal degree. Simyar testified that he knew Daniels would not a pprove Carter’s candidacy, since he lacked a terminal degree

. A t least three chairs of other d epartments , however, did not have PhDs at the time of Coupet’s appointment. 1 In add ition, in the same year that Simyar recommended Coupet, he recommended a professor for another Chair position, even though that professor’s PhD was from an unaccredited inst itution.

1 The appointment details regarding these other professors are not clear from the record.6 No. 13

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Coupet’s tenure as c hair was short

— he resigned in A ugust, after about two months in the position. Simyar s elected Professor Atha Hunt as acting c hair in November 2008. It appears that CSU had a less formalized process for the sele ction of acting c ha irs

— they were appointed by the d ean without a faculty vote or any particular degr ee re quir ements.

D . Procedural History In January 2010, while Carter I was still pending, Carter filed the instant suit against CSU, Simyar, and Tolia . Carter raised a multitude of claims arising under the FMLA, Se ction 1981, Title VII, and the ADA. Becaus e he appeals from judgment on only two of those claims, we limit our discu ssion accordingly

. 2 Carter alleged that CSU, Tolia, and Simyar retaliated against him in violation of the FMLA and Section 1981 w hen they failed to appoint him department c hair in Ma y 2008 (the “c hair” claim) , and again w hen they failed to appoint him acting department c hair in November 2008 (the “a ct ing

c hair” claim)

. Carter alleged that Tolia, Simyar
, and CSU did not select him for the c hair and acting c hair positions in r etaliation f or Carter having taken FMLA leave in 2008, and in retaliation for having initiated the prior lawsuit alleging race and gender

- based discrimination.

Carter’s chair claim survived the defendants’ summary judgment motion, and proceeded to jury trial. The co urt i s2 The district court entered summary judgment against Carter on all of the claims not otherwise discussed in this opinion.No. 13

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sued a di rected verdict for Tolia, and the jury found in favor of CSU and Simyar. Carter does not appeal the se rulings

. Carter’s acting chair claim, however, did not survive the defendants’ summary judgment motion . The court granted summary judgment in favor of Tolia, Simyar, and CSU

. Carter filed a motion for reconsideration , which t he court denied. On appeal, Carter challenges the court’s grant s of su mmary judgment in favor of CSU on the FMLA claim and in favor of Simyar on the Section 1981 claim. 3 He also appeals the court’s denial of his motion to reconsider.

II. A NALYSIS A. Standard of Review We review a grant of summary judgment de novo , “r eviewing the record and the inferences drawn from it in the light most favorable to the nonmoving party.” Grayson v. City of Chicago, 317 F.3d 745 , 749 (7th Cir. 2003). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

B. Retaliation Claims The FMLA entitles any eligible employee to take up to twelve workweeks of leave during each twelve

- month per iod in order to, a mong other things, care for a parent with a serious health condition. 29 U.S.C. § 2612(a)(1)(C). The

3 Carter does not appeal the district court’s decision on any of his claims against Tolia.8 No. 13

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FMLA also makes it unlawful for an employer to retaliate against an employee who exercises his FMLA rights. Id. § 2615(a)(2) , (b) ; s ee also Burnett v. LFW Inc. , 472 F.3d 471, 477 (7th Cir. 2006 ) ( “ The FMLA makes it unlawful for an e mployer to interfere with an employee's attempt to exercise any FMLA rights. It also forbids an employer from retalia ting against an employee who exercises FMLA rights.”) ( i nterna l citations omitted)

. As for Section 1981 , that statute protects the right of all persons “to make and enforce contracts” regardless of race, 42 U.S.C. § 1981(a), and it authorizes claims for retaliation

, CBOCS West, Inc. v. Humphries , 553 U.S. 442, 445 (2008). R etaliation occurs “when an employer takes an adverse e mployment action against an employee for opposing impe rmissible discrimination.” Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012). Individual employees can be held liable under Section 1981 if they “participated” in the retaliatory conduct. Bray, 681 F.3d at 896

– 97

. We review b oth FMLA and Section 1981 retaliation claims under the same framework. To succeed, Carter must demonstrate that : (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between the two. Stephens v. Erickson , 569 F.3d 779, 786 (7th Cir. 2009). Carter’s FMLA leave and prior lawsuit both constitute protected activity, and we assume for the purpose of this appeal that the failure to promote Carter
constitute s an adverse employment action. The question, then, turns on causal connection.

Carter may establish this connection by using the familiar direct or indirect methods of proof. Bray, 681 F.3d at 896

– 97;No. 13

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Stephens, 569 F.3d at 786

– 87. Carter proceeds under both, and w e consider each in turn.

1. Direct Method Under the direct route, Carter may provide either “smo king gun” or circumstantial evidence of retaliatory intent. Smoking gun evidence typically requir es an admission of discriminatory intent

. Tank v. T

- Mobile USA, Inc. , 758 F.3d 800, 805 (7th Cir. 2014). Pieces of c ircumstantial evidence, on the other hand, may be combined to support an inference of discriminatory intent. This circumstantial evidence ma y i nclude “(1) suspicious timing, ambiguous oral or written statements, or behavior toward, or comments directed at, other employees in the protected group; (2) evidence, whether or not rigorously statistical, that similarly situated employees outside the protected class received sys tematica lly better treatment; and (3) evi dence that the employee was qualified for the job in question but was passed over in favor of a person outside th e protected class and the employ er’s reason is a pretext for discriminatio n.” Hutt v. AbbVie Pro ducts LLC, 757 F.3d 687 , 691 (7th Cir. 2014).

Here, Carter does not provide smoking gun evidence of retaliatory intent ; he instead relies on circumstantial ev idence to support his FMLA and Section 1981 claims

. But this
appro ach is unavailing. Carter fails to allege sufficient facts to support an inference of retaliation on either claim. A ccordingly, Carter’s FMLA claim against CSU and his Section 1981 claim against Simyar fail under the direct route

. As to the FMLA claim against CSU

, Carter argues that he completed his protected FMLA activity in close temporal proximity to the acting chair ap pointment, and that close10 No. 13

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proximity raises suspicion of discriminatory intent. But the facts do not support his argument. Carter returned from
F MLA leave in March and was involved in disputes related to his post

- FMLA as signment through April. The acting

c hair appointment occurred in November , creating a te mporal proximity of seven months. Although we have prev iously held that “when temporal proxim ity is one among several tiles in an evidentiary mosaic depicting retaliatory motive, suspicious timing

... can sometimes raise an infe rence of causal connection[,]” Coleman v. Donahoe

, 667 F.3d 835, 860 (7th Cir. 2012), we do not find a span of seven months to be suspicious. 4 See Naficy v. Ill

. Dep’t of Human Servs., 697 F.3d 504, 513 (7th Cir. 2012) (holding a nine

month gap did “little to raise suspicion”); Jajeh v. County of Cook, 678 F.3d 560, 570 (7th Cir. 2012) ( concluding that a five

month gap between complaint of discrimination and a dverse employment action did not amount to suspicious ti ming) ; Leonard v. E. Ill

. Univ., 606 F.3d 428, 432 (7th Cir. 2010) (holding a six

- month lag between complaint and failure

- to

promote “too long to infer a link between the two ” ). To salvage his argument, Carter attempts to piggyback the acting chair appointment claim onto his chair appoin tment claim . The chair appointment occurred about one month after Carter settled the dispute regarding the exercise of his FMLA rights . The acting chair appointment occurred another six months after that. Carter in effect asks us to treat the acting chair appointment as a continuation of the chair appointment. But one is not the continuation of the other, as

4 For whatever reason, Carter does not challenge an appointment that happened earlier in time than the appointment of Atha Hunt

— the a ppointment of the first interim chair, Barbara Roper.No. 13

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evidenced by the unique factu al circumstances and a ppointment process es surrounding each. In addition, Carter’s chair appointment claim went to jury trial , and that jury d ecided against him. If Carter were correct that the two claims

were somehow linked, any such link would be harmful, not helpful, to his case: the jury verdict is dispositive against him. Consequently, we reject this argument. Regarding the Section 1981 claim , Carter also raises a temporal argument. He claims that the temporal proximity between his protected Sec tion 1981 lawsuits and the failure to ap point him acting c hair support s an inference of discri mination. Carter’s 2007 lawsuit was st ill pending at the time of the acting c hair appointment, so Carter argues that a rational juror could conclude that the timi ng of the failure

- to

- appoint was suspicious relative to the discrimination suit. Also relating to his Section 1981 claim , Carter argues that

a deposition statement made by Simyar provides evidence of Simyar’s animus toward Carter for having filed a prior di scrimination lawsuit

. Specifically, Simyar was questioned about the sanctions recommended by Assistant Vice Pres ident Jefferson in April 2007 . Simyar was asked whether those financial sanctions had ever actually been imposed against Carter , or whether no further action had been taken after Jefferson recommended them

. Simyar responded that he believed Carter had not been sanctioned , saying that “ if it would have happened, Professor Carter would write me le tters and file grievance[s] and complaints and so on.” He had not received any such letters or grievances, so he believed Carter had not been sanctioned.

Cart er interprets this statement as a veiled reference to the prior discrimination lawsuit he filed (as well as his other12 No. 13

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grievances and lawsuits over t he years)

, laying bare Simyar ’s animus against Carter

. Read in context , however, Carter’s interpretation of Simyar’s statement is not a reasonable one

. Simyar’s statement merely evinces a chain of logical reaso ning. When asked whether Carter had been sanct ioned, and without any direct evidence upon which to answer the que stion, Simyar reasoned that Carter must not have been san ctioned: if he had, Carter would have lodged a complaint. Simyar went on to add that “if anybody’s salary is [r educed], they will go and complain.” This statement makes clear that Simyar was referring not just to Carter, but to any reasonable person facing financial sanctions. This is co nsistent with the behavior to be expected of any tenured pr ofessor, rega rdless of whether he had a h istory of filing di scrimination complaints . S omeone who is financially san ctioned is quite likely to appeal that decision up the admini strative hierarchy. While we accord all reasonable inferences to Carter at the summary judgment stage, the inference of

a nimus that he suggests here is not a reasonable one. The remaining evidence Carter cites applies equally to the FMLA and Section 1981 claims. Carter claims that Si myar’s efforts to support Coupet over Carter in the c hair a ppointment provide evidence of retaliatory motives in the a c ting c hair appointment. Again, Carter asks us to treat the ac ting chair claim as a continuation of the chair claim. We d ecline to do so. D rawing an inference of retaliation in the ac ting chair clai m would re quire a leap in logic that we are u nwilling to take

. Carter next claims that he and Hunt were similarly sit uated parties, and tha t Hunt was treated differently by being appointed acting chair . We discuss this claim in detail in theNo. 13

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following sect ion , as it overlaps with Carter’s arguments under the indirect method of proof. And finally, Carter claims that Simyar’s stated reasons for selecting Hunt were pretextual. When asked why he did

not appoint Carter to the acting chair position, Simyar sta ted , “No reason. I had to appoint one person. I appointed Atha Hunt.”
To show pretext, Carter must establish that Simyar’s “o stensible justification for its decision is unworthy of cr edence.” Tank, 758 F.3d at 807

– 08 (citing Gordon v. United Ai rlines, Inc., 2 46 F.3d 878, 888 (7th Cir. 2001) ) . He can do this by “providing evidence tending to prove that the employer’s proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the [empl oyment action].” Tank, 758 F.3d at 808 (quoting Gordon, 246 F.3d at 888

– 89). While Simyar’s stated

reason was admittedly terse and lacking in detail, Carter presented no evidence, aside from vague references to the evidence discussed above, to show that Simyar’s stated re ason was “unworthy of credence.” Looking at this proffered evidence in combination, we conclude that Carter has not presented sufficient evidence to establish a genuine issue of material fact as to Simyar ’s and CSU’s motives in not appoin ting Carter to the acting chair position. The lone piece of evidence that carries any weight supporting an inference of retaliatory motive is the temporal proximity between Carter’s prior lawsuits and the acting chair appointment. But we have repeatedly he ld that “te mporal proximity between an employee’s protected activity and an adverse employment action is rarely sufficient to show that the former cause d the latter.” Coleman, 667 F.3d at14 No. 13

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860. Without any other corroborating evidence, Carter’s claim cannot survive summary judgment under the direct

route.

2. Indirect Method
As discussed, Carter also proceed s under the indirect method of proving retaliatory intent. Under this method, Carter must first establish a prima facie case of retaliation. Once he has d one so , the defendants must articulate a legi timate, non

- discriminatory reason for the employment action.
T he burden then shifts back to Carter to offer evidence that the defendants’ stated reason was pretextual. Vaughn v. Vi lsack, 715 F.3d 1001, 1006 (7th Cir. 2013).

To meet his prima facie burden in a retaliation claim, Carter must establish that : “(1) he engaged in statutorily pr otected activity; (2) he met his employer’s legitimate expect ations... ; (3) he suffered a materially adverse action; and (4) he w as treated less favorably than some similarly situated employee who did not engage in the statutorily protected activity.” Id.

In the failure

- to

- promote context, we have described the standard with an added degree of particularity. In terms of his adverse employment action, Carter must show that he applied, was qualified, and was rejected for the position sought. Grayson, 317 F.3d at 748. And in order to satisfy the fourth prong, that he was treated less favorably than a sim ilarly situated employee, he must show that “the employer granted the promotion to someone outside of the protected group who was not better qualified than the plaintiff.” Id.
Thus, when the failure

- to

- promote is allegedly retaliat ory, the plaintiff must show the following to meet his pr imaNo. 13

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facie burden: (1) he engaged in statutorily protected activity; (2) he applied for and was qualified for the position sought; (3) he was rejected for that position; and (4) the employer granted the promotion to someone who did not engage in statutorily protected activity, and who was not better qual ified than the plaintiff. 5

We conclude that Carter did not meet his prima facie bu rden under the indirect method. The district court concluded that Carter could not satisfy the second prong

— that he a pplied fo r the position sought

— because he failed to express interest in being considered for the position

. We ne ed not determine whether Carter’s case is defeated by the second
prong, however, because we conclude that he failed to pr esent evidence establishing that CSU and Simyar granted the promotion to someone who was not better qualified than
Carter. Carter alleges the following facts as supporting the d etermination that Hunt was less qualified than Carter : Hunt has a JD, not a PhD; a JD typically would not satisfy the D epartment’s tenure requirements; and Hunt did not receive four faculty votes in the Chair appointment race , as Carter did. These facts do not carry the day. Even accepting all of them as true, Carter does not establis h a genuine dispute of material fact regarding whether Hunt was less qualified t han

5 T he parties seem to assume, but do not explicitly state, that this is a “failure

- to

- promote” case. We think that is an accurate description, but regardless, how we classify the case is not dispositive , as Carter’s claim would also fail if evaluated under th e more general “retaliation” stan dard.16 No. 13

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Carter for the position of a ct ing c hair. First, Carter does not ide ntify any criteria used by CSU for determining a cting

c hair appointments. Without k nowing what qualificat ions the d e partment sought in an acting c hair, it is almost impo ssible to determine which candidate was more or less qual ified.

Nor does Carter identify what significance, if any, CSU officials placed on degree credentials in the acting c hair a ppoint ment. Carter relies on an inference that because a JD is not normally sufficient to qualify a professor for tenure, it must be viewed by CSU as an inf erior degree credential for the purposes of acting c hair. For several reasons, w e cannot make that inference. Ca rter seems to concede that Hunt was in fact granted tenure

— so the factors that induced CSU to grant Hunt “extraordinary” tenure may be the very factors that made him part icularly qual ified to serve as a ct ing c hair. Or perhaps the acting c hair has frequent exposure to matters of legal significance, and a JD is a great asset. Without any information about the qualifications that CSU sought, Carter simply cannot establish that Hunt was not more qualified.

Carter also suggest s that having prev iously received four faculty votes in the chair appointment process constitutes a

“ qualifica tion ” for the purposes of appointment to acting

c hair

. T his contention is without merit . The faculty chair vote represented a recommendation on behalf of the facult y that

was non

- binding on both the college’s dean and the unive rsity president. Carter provides no evidence to support the conclusion that faculty preference could somehow be inte rpreted as a job qualification. E v en if that recommendation could properly be classified as a qualification, there is no apt comparison to be made between Hunt and Carter

. HuntNo. 13

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simply was not part of that race

— only Carter and Coupet submitted their names for consideration

. It is true that h alf of the faculty, when given the choice between Carter and a pe rson who was not Hunt, chose Carter. No inferences can be drawn , however, about the faculty’s preference for Hunt, or Hunt’s qualifications

, from the fact that he chose not to throw his hat in the ring. Finally, Carter did not provid e any other information that would permit a finder of fact to compare him with Hunt. That includes information about how long Hunt had been employed by the university or in other teaching pos itions; how many and which courses Hunt taught; how Hunt
was revi ewed by students and superiors; his performance in any of his job responsibilities; or his level of administrative experience. We conclude by noting that several pieces of evidence in the record before the district court support the conclusion that, at lea st in terms of performance, Carter may well have been less qualified than Hunt. Tolia stated in his deposition that the administration had received a variety of student complaints about the quality of Carter’s teaching. Tolia test ified that, per the d epart ment’s pro tocol, he had attempted to resolve at least one of those student complaints by facilita ting a conference between Carter and the student. Carter r efused to attend the meeting.
In addition, record evidence suggest s that Carter twice refused to teach one of his classes for an entire semester

. Carter also conceded that he had been previously removed by the university president as chair of the department. In d oing so, the president cited Carter’s “overall ineffective lea dership evidence d by extreme divisiveness within the d e-18 No. 13

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partment and faculty perception of inequitable standards applied to department members.” Faced with these facts, and the lack of information presented by Carter, a reason able jury simply could not have concluded that Hunt was no more qualified than Carter.

C. Motion to Reconsider the Grant of Summary Judgment We need not address Carter’s appeal of the denial of his motion to reconsider. The entry of su mmary judgment against Carter was a final order, and it completely disposed of Carter’s claims. Because we affirm that grant of summary judgment, his appeal of the denial of his motion to reconsi der the grant of summary judgment is dismissed

. III. C ONCLUSION

Because Carter did not raise a genuine issue of mat erial fact regarding his employer’s allegedly retaliatory m otives through either the direct or indirect methods of proof, his claims cannot survive a motion for summary judgment. We therefore AFFIRM the district court’s grant of summa ry judgment and DISMISS Carter’s appeal of the denial of his motion to reconsider.

AFFIRMED