Chief Judge of the United States District Court for the South- 

ern District of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3747

SURIYA H. SMILEY,

Plaintiff-Appellant,

v.

COLUMBIA COLLEGE CHICAGO,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CV 06183—Samuel Der-Yeghiayan, Judge.

ARGUED MAY 3, 2011—DECIDED APRIL 30, 2013

Before ROVNER and WILLIAMS, Circuit Judges, and

YOUNG, District Judge.

WILLIAMS, Circuit Judge. After receiving a complaint

from a student concerning one of its part-time instructors, Columbia College Chicago faculty members and administrators interviewed the student on several oc-
2 No. 10-3747

casions and also interviewed the faculty member. The

school ultimately informed the faculty member, Suriya

Smiley, that it would not ask her to teach further

classes. Smiley contends the school’s decision was based

on her race or national origin. Although she maintains

that other instructors outside her protected class were

treated more favorably, the investigations of other instructors to which she points do not suggest that. The

school’s procedures did not require the school to

contact other witnesses to alleged discriminatory conduct, and the school’s investigation of the complaint

against her does not indicate that its reason for telling

her it would not ask her to teach more classes was

pretextual. We affirm the district court’s grant of summary judgment in favor of Columbia.

I. BACKGROUND

Columbia College is a private arts and media college

in Chicago. Suriya Smiley was a part-time instructor

in Columbia’s Radio Department from 1994 through

January 2009. She is of Palestinian and Lebanese descent.

Near the end of the fall 2008 semester, one of the nine

students in Smiley’s Radio Studio Operations class met

with two faculty members and said he felt Smiley had

singled him out in class because he is Jewish. At one of

the faculty members’ request, the student outlined his

complaint in an email, which he sent on November 18,

2008. The email stated (with punctuation and spelling

as it appears in the original):
No. 10-3747 3

I have great concern over some instances in my

Radio Studio Operations class with Sue Smiley.

They have escalated into being major derogatory,

and anti-semetic issues. I would like to recap for

you what has happened.

1. On September 8th, In my first class with Sue

Smiley, she was doing attendance. She came to

my name, and said “you’re a JEW” right?” I asked

Sue, “why did you ask that?” She said “I could

tell by your nose, and last name.” Then she said,

“I’m an Arab.”

2. On October 27th, Sue told me directly she went

to Shlotsky’s deli with friends over the weekend

she said her friends ordered food, and told me,

damn those “Jews” know some good food.

3. On November 3rd, Sue asked myself & Joe

which I forgot his last name to look at a cd on my

computer. The cd happened to contain explicit

pictures of her revealing her body.

4. On November 10th, Sue asked me if I knew a

recent graduate. I said “no” She said, “I thought

all “JEWS” knew everyone.” She came to where I

was sitting and asked if she could take a picture of

me. I said no. She replied with, “are you too religious of a JEW to take a picture?” Then at the end

of the class she came very close to my face and

smirked and said, “bye sweetie.”

Last week when I left the room, I over heard her

telling the class that I sucked on the radio. She tells
4 No. 10-3747

everyone her life story, and laughs at people

behind their backs.

These are a few of the instances that I have come

up against in her class. I worked for 3 years

before coming to college. During that time I encountered many types of people from many backgrounds. Unfortunately there are a lot of misconceptions and generalizations about people in

the “real” world. Many times I would come

home and repeat in disbelief what someone in

the workplace had said to me. But, I chalked it

up to them being uneducated and unpolished.

I chose Columbia College not only because of

it’s reputation as one of the finest schools, but

also because of it’s diversity. Never did I ever

expect to be denigrated and humiliated by a

teacher. However, since attending Ms. Smiley’s

class puts me in a situation of extreme discomfort negatively; I am looking towards your guidance as how to proceed from here.

Please respond as soon as possible so that I can

look forward to my future education.

The faculty member set up a meeting with Student A

and the Chair of the Radio Department, Barbara Calabrese.

At the meeting, Student A repeated what he had stated

in his email, said that he was extremely uncomfortable

in class and did not want to return, and stated that he

felt isolated and singled out in class for being Jewish.

Columbia implemented a revised Anti-Discrimination and Harassment Policy in August 2008. Among other
No. 10-3747 5

things, it provides that students will not receive unfavorable treatment based on race or religion. The responsibility for investigating complaints raised by students

under the policy rests with the Dean of Students’ Office.

Stephanie Downs, the Assistant Director for Student

Development and one of the persons responsible for

investigating complaints by students against faculty,

met with Student A and documented the meeting in a

memorandum. She stated in it that Student A verified

all the information in his email. She also stated in the

memorandum that the student feared what Smiley

would say to him and about him, that he was unsure

whether he wanted to submit a written statement, and

that he felt that the issue had been resolved because

he was no longer in the class.

Downs telephoned Smiley, and the two met in

Downs’s office several days later. Downs documented

this meeting in a December 9 memorandum. Downs’s

memorandum recounts that Smiley made statements

including that she has a “standard joke” with her

class; she “goofs around with them”; “I knew I hurt

his feelings. It’s not going to hurt a regular student.”;

“[Student A] misunderstood. I guess he is very concrete.”; and “I teased him.” Downs testified in her deposition that it had been her practice over seventeen years

to place quotation marks around statements that were

direct quotations, as she did for these statements in

her memorandum. Smiley denies stating that she had a

standard joke with the class, that she said her comments

would not hurt a regular student, or that she said he is

concrete. She also denies making any of the remarks
6 No. 10-3747

directed to Student A about his religion that he alleged

in his email. Smiley presented along with her summary

judgment response affidavits from several students in

the class who state that she did not make discriminatory remarks.

As was her practice, Downs prepared a “Summary of

Discrimination Complaint” that summarized Student A’s

complaint and her interviews, and she concluded that

Smiley violated the Anti-Discrimination and Harassment

Policy. Louise Love, Columbia’s Vice-President for Academic Affairs, determined the consequences for faculty

members who violated the Policy. After receiving

Downs’s summary, Love, who had not previously met

Smiley, had a meeting with Smiley where a union representative and Calabrese were also present. Love testified

that as a result of the meeting, she believed from the

way that Smiley spoke about her relationship with her

students that Smiley did not observe professional decorum. She also believed Smiley did not understand

the boundaries between faculty and student based on

Smiley’s joking and teasing with her students and disclosure of facts about her own family situation. After the

meeting, Love prepared a summary memorandum where

she noted, among other things, that Smiley said she

told Student A’s class she was Arab and that she had

eaten her first knish, but that she denied making any

other comments about Jews. Love also noted that Smiley

was aware she embarrassed Student A by making a

joke about the fact he did not know certain musicians.

Love sent Smiley a letter on January 17, 2009 advising
No. 10-3747 7

her that Columbia found her in violation of the Policy

and that she would no longer be asked to teach courses.

Smiley filed this suit alleging that Columbia discriminated against her on the basis of her race and national

origin in violation of Title VII, 42 U.S.C. § 2000e. She

also brought a claim for race discrimination under

42 U.S.C. § 1981. The district court granted Columbia’s

motion for summary judgment, and Smiley appeals.

II. ANALYSIS

We review the district court’s grant of summary judgment de novo, construing all facts and reasonable inferences in Smiley’s favor. See Matthews v. City of East St.

Louis, 675 F.3d 703, 706 (7th Cir. 2012). Smiley maintains

that Columbia College discriminated against her on

the basis of her race and national origin. Title VII

prohibits an employer from discriminating “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). Section 1981 prohibits

race discrimination in the making and forming of contracts. O’Leary v. Accretive Health, Inc., 657 F.3d 625,

630 (7th Cir 2011). We generally apply the same standards to Title VII and section 1981 race discrimination claims at the summary judgment stage. Humphries

v. CBOCS West, Inc., 474 F.3d 387, 403 (7th Cir. 2007).

No member of Columbia’s administration or faculty

made explicit comments regarding her race or national
8 No. 10-3747

origin, so Smiley proceeds under the familiar indirect

method of proving Title VII and section 1981 claims. See,

e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973); Stockwell v. City of Harvey, 597 F.3d 895, 902 (7th

Cir. 2010). Under the indirect method, to survive summary judgment, Smiley must first establish a prima facie

case, which she can do by showing: (1) she is a member

of a protected class; (2) she met Columbia’s legitimate

expectations; (3) she suffered an adverse employment

action; and (4) similarly situated employees outside of

the protected classes were treated more favorably.

Arizanovksa v. Wal-Mart Stores, Inc., 682 F.3d 698, 702

(7th Cir. 2012). If she satisfies the prima facie case,

the burden shifts to Columbia to identify a legitimate, nondiscriminatory reason for the termination. Id.

If Columbia does so, summary judgment would only

be improper if Smiley produced sufficient evidence

that the proffered reason was pretextual. Id.

Columbia maintains that summary judgment was

proper on the basis that Smiley was not meeting its legitimate expectations. Although Smiley denies some of

Student A’s allegations, some things are undisputed.

Columbia received a written complaint of some length

from a student in Smiley’s class. At least four Columbia

employees met with or interviewed the student and

heard him confirm his allegations. Both Downs and Love

met with Smiley on separate occasions. Although

Smiley denies making some of the statements Student A

alleges, she acknowledged that her teaching style involved goofing around with her students, teasing them,

and that Student A was upset after she joked with him.
No. 10-3747 9

It is not unreasonable for Columbia to expect that its

instructors will teach classes in a professional manner

that does not distress students. Cf. Vaughn v. Vilsack, ___

F.3d ___, 2013 WL 856515, at *5 (7th Cir. 2013) (explaining that even if plaintiff’s conduct did not rise to

the level of actionable harassment, plaintiff did not

satisfy legitimate expectations where he was not performing his job in a manner that an employer would

find acceptable).

If Smiley failed to establish all elements of her prima

facie case under the indirect method, then we would not

need to proceed further. Id. But as we explained in

Vaughn, sometimes the analysis of the “legitimate expectations” inquiry merges with the pretext analysis,

which is what Smiley asks us to do here in light of

her suggestion that she has presented evidence that

Columbia treated non-Arab and non-Palestinian instructors accused of violating the Policy in a more favorable

manner. Cf. id. at *5. The focus of the pretext inquiry

is whether the proffered reason is a lie. Id. That is, the

question “is not whether the employer’s stated nondiscriminatory ground for the action of which the plaintiff

is complaining is correct but whether it is the true

ground of the employer’s action rather than being a

pretext for a decision based on some other, undisclosed

ground.” Forrester v. Rauland-Borg Corp., 453 F.3d 416,

417 (7th Cir. 2006). Columbia’s letter to Smiley stated

that she had violated the Policy. Columbia also asserts

it was justified in not asking her to teach more classes

in light of her admission that she goofed around with

her students, teased her students, and acknowledged
10 No. 10-3747

that Student A was upset by one of her comments and

bolted out of class.

Smiley maintains that the school’s investigation in

her case was deficient and that it evidences pretext. An

employer’s investigation, or lack thereof, can inform

the pretext inquiry. See Humphries, 474 F.3d at 407

(finding employer’s failure to conduct any investigation,

including failure to interview the plaintiff, helped show

that employer’s reason for discharge was a lie). In Chaney

v. Plainfield Healthcare Center, 612 F.3d 908 (7th Cir. 2010),

for example, one of the cases to which Smiley points,

the director of nursing decided to fire the plaintiff

within twenty-four hours of receiving a complaint that

the plaintiff had used profanity, a decision we said the

director “reached in an unusual way.” Id. at 916. Although

normally the unit supervisor would have investigated

charges in her unit, the director conducted his own investigation and decided to fire the plaintiff. He made

that decision without considering the unit supervisor’s

conclusion that the complaint was unfounded and also

without interviewing the plaintiff. The plaintiff also

showed that another employee was not questioned

about failing to respond to a bed alarm (which the employer later gave as another reason to fire the plaintiff)

until two weeks after the incident, and then was not

disciplined. Id. Under those circumstances, we concluded that a jury should decide whether the plaintiff’s

discharge was racially motivated. Id.

Here, however, the other investigations of instructors

accused of violating the Policy do not suggest that in-
No. 10-3747 11

structors outside her protected class received more favorable treatment. Smiley argues in this suit that the

school should have interviewed other students in

Smiley’s class before it decided it would not ask her to

teach further classes. The school’s Anti-Discrimination

and Harassment Policy procedures do not require interviews of other witnesses. The only general requirements

for investigations at the time were to contact and interview the student and faculty member, and then to determine if the Policy was violated. As Sharon Wilson-Taylor,

the Dean of Students, explained when asked to describe

the procedure for investigating a complaint raised by a

student against a faculty member: “A complaint is

raised; the intake staff will contact the student or the

faculty, and an interview is conducted. And then it’s

determined if the policy was violated or not. That’s

pretty much the process.” So no procedure required

an investigator to contact other witnesses, although

Wilson-Taylor stated that the practice was that if a

student or faculty member stated there were witnesses

to an incident, the witnesses would be contacted.

The other investigations to which Smiley points do not

suggest that instructors outside her protected class

were treated more favorably than her. The investigation

of Instructor 1 was nearly identical to hers. There, a

student made a written complaint against a teacher

alleging discriminatory statements made by the

teacher toward the student. Downs interviewed only the

student, teacher, and department chair, and Downs

concluded the teacher had violated the policy. (The

department chair decided not to terminate Instructor 1;
12 No. 10-3747

Love was not the decision-maker in that case.) Instructor 2

was accused of using racial slurs in class. Downs interviewed the faculty member and three students, found

the Policy violated, and the instructor was not asked

to teach any more classes. In Instructor 3’s case, Downs

twice interviewed the student who accused a faculty

member of sexual harassment, and she interviewed

the faculty member once. Although other persons could

have corroborated the student’s allegations and the

instructor denied acting inappropriately in his interview, Downs did not interview anyone else. The

instructor was not asked to teach further classes.

Instructor 4 was also accused of sexual harassment.

Downs interviewed the complaining student and a

former student, and she corresponded with another

former student via email. She found no violation of the

Policy. Regarding Instructor 5, after interviewing the

complaining student, Downs and Wilson-Taylor concluded the Policy did not apply because the alleged

sexual harassment took place off campus.

These other investigations do not suggest that persons

outside Smiley’s class were treated more favorably or

that Columbia’s reason for terminating Smiley’s employment was pretextual. Downs interviewed more than

one current student on only one occasion, when she

interviewed three students during the investigation

of Instructor 2. Although Smiley maintains Downs interviewed the complaining student and two non-complaining students in that investigation, Downs’s

statement in her memorandum that she “interviewed

the students and faculty involved” makes it unclear
No. 10-3747 13

whether all the interviewed students had complained,

or just one. (The nature of the class suggests that it

likely would have had more than three students, so it

is unlikely she interviewed all “involved” if “involved”

means persons who heard the comments.) In any event

all three students found the comments the instructor

made in class offensive, whereas here the alleged comments were directed only toward one student (albeit

made in front of the class). Notably, the interview of

multiple students did not yield a more favorable result

for Instructor 2, as he was found to have violated the

Policy and not asked to teach any more classes. We

also note that in all instances where Love was the decisionmaker and a faculty member had been determined to

violate the Policy, Love decided to no longer ask the

instructor to teach classes.

Downs interviewed two former students (one via

email) during her investigation of Instructor 4. Columbia

reasonably asserts that interviewing former students

is different than interviewing current students, for

reasons including that there is the potential for current

students to feel caught in the middle or pressured. And

Downs did not interview other students after the

student’s allegations against Instructor 3. The student’s

allegations against Instructor 3 included assertions that

could have been corroborated by other students or

persons affiliated with the school, but Downs did not

speak to anyone other than the student and instructor

even though the instructor denied engaging in

improper conduct. So other witnesses were not always

interviewed during investigations. Indeed, the Policy
14 No. 10-3747

states that complaints will be treated in confidence to

the extent feasible.

Notably too, it is clear that the interviews of multiple

persons in the investigations of Instructors 2 and 4 were

designed to corroborate the allegations against the instructor, not to gather a potentially favorable account

for the instructor. And, again, the only other investigation where Downs spoke with other current students

(the investigation of Instructor 2) also resulted in a

finding that the instructor violated the Policy and would

not be asked to return. The investigations to which

Smiley points do not reflect favorable treatment to similarly situated non-Arab instructors.

Smiley also maintains that the district court abused its

discretion when it declined to consider a declaration

attached to her summary judgment response from a

professor at Roosevelt University, where Love had

served as the Associate Provost. The professor does not

attest that Love made any derogatory statements

about Arabs or Palestinians, but he says that a Roosevelt

department chair had made disparaging comments

about Palestinians. He then asserts that in a memorandum issued to the professor’s union representative, Love

made statements regarding the chairperson’s comments

including that the chairperson “had a right to express

views as to the appropriateness of the time spent in

class on the question [of the Arab-Israeli conflict].” But

the declaration did not attach the memorandum, so

the district court did not abuse its discretion when it

declined to consider it on summary judgment after con-
No. 10-3747 15

cluding that Smiley did not show that the testimony

would be admissible. See Fed. R. Civ. P. 56(c)(4) (declarations in support of motions for summary judgment must

be made on personal knowledge and set forth facts

that would be admissible in evidence); Article II Gun

Shop, Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006)

(“To be admissible, documents must be authenticated

by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person

through whom the exhibits could be admitted into evidence.”).

Smiley also asserts that Calabrese told her, “I’m not

here for you. I’m here for the students.” Smiley argues

that this statement is evidence Calabrese wanted to see

Smiley’s employment end. The statement indicates that

the welfare of the students is the priority for Calabrese,

but it does not go as far as Smiley contends. She also

argues that differences between Love’s testimony in

her deposition and in her affidavit evidence pretext. At

her deposition, Smiley’s counsel asked Love what statements Smiley made in their meeting that corroborated

Student A’s allegations. Without the benefit of reviewing the summary she prepared immediately after

her meeting with Smiley, Love cited examples including

joking and teasing of students and her impression

that Smiley did not understand the boundaries between

students and faculty. Love’s affidavit included more

detail than her deposition response, but all the reasons

she gave in her affidavit were stated in her deposition

or summary memorandum.
16 No. 10-3747

Pretext does not exist if the decision-maker honestly

believed the nondiscriminatory reason for its employment action. Stockwell v. City of Harvey, 597 F.3d 895,

902 (7th Cir. 2010). That is because courts are not charged

with determining best business practices. Id. On this

record, we conclude that Smiley has not provided sufficient evidence of pretext and that summary judgment

was proper.

III. CONCLUSION

The judgment of the district court is AFFIRMED.

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