Shott v. Katz, No. 15-3528 (7th Cir. 2016)
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In 1994, Shott, a tenured associate professor of biostatistics at Rush University, sued, claiming discrimination by refusing to make reasonable accommodations for her religion (Orthodox Judaism) and disability (rheumatoid arthritis). A jury rejected Shott’s claim of religious discrimination but awarded her $60,000 for disability discrimination. She sued Rush again in 2011, alleging that Rush refused to increase her salary or promote her in retaliation for her earlier lawsuit. The Seventh Circuit affirmed summary judgment for Rush. While that lawsuit was pending, Shott sued Katz (42 U.S.C. 1981), whom she had occasionally helped with statistical analysis, alleging that, in retaliation for her litigation Katz impeded her career advancement by rebuffing her invitations to collaborate. Katz was also Shott’s treating rheumatologist; she claimed he failed to timely respond to requests for prescription refills, requiring her to have an examination every six months. The Seventh Circuit affirmed dismissal, noting that Shott had not alleged that Katz’s medical care affected Shott's employment. Nor did the examination requirement amount to a material adverse action. “If she was not willing to comply with that obviously reasonable condition, she should have tried to find a new doctor, not filed a federal civil rights lawsuit.” Shott failed to allege a sufficient “nexus” between Katz’s refusal to collaborate and her career advancement; Katz’s decisions about what research to pursue, and with whom, are protected by the First Amendment.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 3528 SUSAN SHOTT, Plaintiff Appellant, v. ROBERT S. KATZ, Defendant Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 4863— Virginia M. Kendall, Judge. ____________________ ARGUED APRIL 26, 2016— DECIDED JULY 11, 2016 ____________________ Before KANNE, SYKES, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Susan Shott, a tenured associate professor of biostatistics at Rush University Medical Center, brought this lawsuit under 42 U.S.C. § 1981 alleging that one of her colleagues, Dr. Robert Katz, retaliated against her for complaining about anti Jewish discrimination in the work place. The district court dismissed her complaint for failure to state a claim. We affirm. 2 No. 15 3528 This case arises indirectly from two lawsuits Shott filed against Rush years ago. She first sued Rush in 1994 claiming that Rush administrators discriminated against her by refus ing to make reasonable accommodations for her religion (Or thodox Judaism) and disability (rheumatoid arthritis). A jury rejected Shott’s claim of religious discrimination but awarded her $60,000 for disability discrimination. See Shott v. Rush Presbyterian St. Luke’s Med. Ctr., 338 F.3d 736, 738–39 (7th Cir. 2003). She sued Rush again in 2011. This time she alleged, among other things, that Rush administrators refused to in crease her salary or promote her to full professor in retaliation for her earlier lawsuit. The district court granted summary judgment for Rush, and we affirmed. See Shott v. Rush Univ. Med. Ctr., No. 15 3767, 2016 WL 3316618 (7th Cir. June 15, 2016). While her second lawsuit against Rush was pending, Shott also sued Katz, whom she had occasionally helped with sta tistical analysis. She alleged that, in retaliation for her ongoing litigation against Rush, Katz impeded her career advance ment by rebuffing her invitations to collaborate on research articles. She explained that “[p]ublication of research articles is very important for the career advancement of Rush Medical School faculty members” and that “[b]y refusing to publish research articles with Dr. Shott and refusing to do research with her, Dr. Katz has caused significant damage to Dr. Shott’s career.” Katz was also Shott’s treating rheumatologist. She also ac cused him of retaliating against her by refusing to respond in timely fashion to her requests for prescription refills. When Katz did respond, he agreed to refill Shott’s medications but No. 15 3528 3 only if she would come in for an examination every six months, a requirement that she found inappropriate. The district court dismissed Shott’s complaint for failure to state a claim. The court explained that Katz’s alleged with holding of medical treatment did not state a claim for retalia tion under § 1981 because Shott had not alleged that Katz’s medical care affected her employment. The court also con cluded that she failed to allege a sufficient “nexus” between Katz’s refusal to collaborate and her career advancement at Rush. The court gave Shott fourteen days to file an amended complaint, but she chose to appeal instead. We begin with a jurisdictional matter. Because Shott filed her notice of appeal four days before her deadline for filing an amended complaint, Katz has moved to dismiss the appeal for lack of jurisdiction. But as Katz now concedes, “[w]hen a judge conditionally dismisses a suit, but gives the plaintiff time to fix the problem that led to dismissal … , the order be comes an appealable ‘final decision’ once the time for correc tion has expired, whether or not the court enters a final judg ment.” See Davis v. Advocate Health Ctr. Patient Care Express, 523 F.3d 681, 683 (7th Cir. 2008). There has been no activity in the district court since Shott filed her notice of appeal, so the district court’s order dismissing her complaint without preju dice became a final decision within the meaning of 28 U.S.C. § 1291. See id.; Borrero v. City of Chicago, 456 F.3d 698, 699–700 (7th Cir. 2006). We therefore have jurisdiction over this ap peal. Section 1981 “protects the right of all persons to make and enforce contracts regardless of race.” Carter v. Chicago State Univ., 778 F.3d 651, 657 (7th Cir. 2015) (internal quotation marks omitted). The Supreme Court has recognized that Jews 4 No. 15 3528 are among the “identifiable classes of persons” the statute protects. See Saint Francis Coll. v. Al–Khazraji, 481 U.S. 604, 611–13 (1987); Lubavitch Chabad of Ill., Inc. v. Northwestern Univ., 772 F.3d 443, 446–47 (7th Cir. 2014); Bachman v. St. Mon ica s Congregation, 902 F.2d 1259, 1261 (7th Cir. 1990)); cf. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987) (explaining that although “Jews today are not thought to be members of a separate race,” they are nonetheless protected under 42 U.S.C. § 1982 because at the time of the statute’s adoption they “were among the peoples then considered to be distinct races”). To state a retaliation claim under § 1981 based on events occurring in the workplace, an employee must show that she suffered a materially adverse action because she engaged in protected activity. See Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 674 (7th Cir. 2011); Silverman v. Board of Ed ucation, 637 F.3d 729, 740–42 (7th Cir. 2011). “Individual em ployees can be held liable under Section 1981 if they ‘partici pated’ in the retaliatory conduct.” Carter, 778 F.3d at 657, quoting Smith v. Bray, 681 F.3d 888, 896–97 (7th Cir. 2012); see also Sklyarsky v. Means Knaus Partners, L.P., 777 F.3d 892, 896 (7th Cir. 2015) (recognizing that third parties may be liable under the statute for tortiously interfering with an employee’s relationship with her employer for racial reasons); Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008) (same). Shott contends that the district court construed § 1981 too narrowly by requiring her to allege that Katz’s acts of retalia tion were related to an adverse employment action. As a gen eral matter, we agree with her that the court’s focus on em ployment was unwarranted. The statute forbids any retalia tory actions that are “harmful to the point that they could well No. 15 3528 5 dissuade a reasonable worker from making or supporting a charge of discrimination,” and those retaliatory actions need not be directly “related to employment or occur in the work place” except that their harm must have been caused by con tract or employment related events. Burlington Northern and Santa Fe R.R. Co. v. White, 548 U.S. 53, 57 (2006); see Pantoja v. American NTN Bearing Mfg. Corp., 495 F.3d 840, 848–49 (7th Cir. 2007). That analytic error was harmless, though. A plaintiff can plead herself out of court by alleging facts that show she has no legal claim. Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011). The retaliatory acts Shott alleged cannot plausibly be considered materially adverse. See Burlington Northern, 548 U.S. at 57. Shott did not, for example, allege that Katz was un der any obligation to work with her or that he discouraged anyone else from working with her. Even if Katz’s refusal to collaborate with her was in some way motivated by disap proval of her litigation against Rush, that would not be action able under § 1981. We held in Smith v. Bray, 681 F.3d 888, 898– 900 (7th Cir. 2012), that an individual employee could be lia ble under § 1981 for causing an employer (under a “cat’s paw” theory) to take retaliatory action against an employee. We have not gone so far, however, as to suggest that a plain tiff’s fellow employees violate the implied retaliation prohibi tion in § 1981 by not seeking out the plaintiff to collaborate on professional projects. Moreover, Katz’s decisions about what research projects to pursue—and with whom—are protected by the First Amendment and would not serve as a proper basis for hold ing him liable for violating Shott’s civil rights. See Trejo v. Sho 6 No. 15 3528 ben, 319 F.3d 878, 884 (7th Cir. 2003) (First Amendment pro tects faculty member’s right to participate in “academic de bates, pursuits, and inquiries”); Dow Chemical Co. v. Allen, 672 F.2d 1262, 1275 (7th Cir. 1982) (recognizing that right to aca demic freedom includes right to carry on research without in terference from fellow faculty members); McElearney v. Uni versity of Ill. at Chicago Circle Campus, 612 F.2d 285, 288 (7th Cir. 1979) (“Academic freedom does not empower a professor to dictate to the University what research will be done using the school’s facilities.”); see also Hosty v. Carter, 412 F.3d 731, 736 (7th Cir. 2005) (en banc) (“Let us not forget that academic freedom includes the authority of the university to manage an academic community and evaluate teaching and scholarship free from interference by other units of government, includ ing courts.”). Nor is it plausible that Katz’s request to examine Shott every six months as a condition of continuing her prescrip tions amounted to a material adverse action. If she was not willing to comply with that obviously reasonable condition, she should have tried to find a new doctor, not filed a federal civil rights lawsuit against Katz. AFFIRMED.
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