Tuesday, July 19, 2016

7th Circuit Dismisses Professor's Section 1981 Retaliation Claim Against Colleague for Failure to State a Claim

In somewhat of an unusual case, the Court of Appeals for the 7th Circuit upheld dismissal of a plaintiff's suit for failure to state a claim when she sued one of her colleagues--who was also apparently her treating rheumatologist--under 42 U.S.C. section 1981 alleging retaliation for her complaining about anti-Jewish discrimination in the workplace (i.e., because she had an active lawsuit against her employer, Rush University Medical Center).

The plaintiff, Susan Shott, first sued Rush in 1994 claiming religious and disability discrimination where her religious claim was defeated but she was awarded $60,000 for her disability discrimination claim.  Shott then sued Rush again in 2011 alleging, among other things, that Rush administrators refused to increase her salary or promote her to full professor in retaliation for her earlier lawsuit.  The district court granted summary judgment and the 7th circuit affirmed.

While Shott's second lawsuit against Rush was pending, Shott then sued the current defendant, Robert S. Katz, "whom she had occasionally helped with statistical analysis."  Shott sued Katz alleging that, in retaliation for her ongoing litigation against Rush, Katz impeded her career advancement by rebuffing her invitations to collaborate on research articles.  Shott also accused Katz of retaliating against her by refusing to respond in timely fashion to her requests for prescription refills.

The lower court dismissed Shott's complaint for failure to state a claim, explaining that Katz's alleged withholding medical treatment did not state a claim for retaliation under section 1981 because Shott had not alleged that Katz's medical care affected her employment and also that Shott failed to allege a sufficient "nexus" between Katz's refusal to collaborate and her career advancement at Rush.  The lower court gave Shott 14 days to file an amended complaint, but she chose to appeal to the 7th circuit instead.

To state a retaliation claim under section 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.  Furthermore, "individual employees can be held liable under Section 1981 if they 'participated' in the retaliatory conduct."  Shott argued that the lower court construed section 1981 too narrowly when they required her to allege that Katz's acts of retaliation were related to an adverse employment action.  The 7th circuit agreed with Katz but found this to be nevertheless unhelpful for her as Shott did not allege Katz was under any obligation to work with her or that he discouraged anyone else from working with her and that even if Katz's refusal to collaborate with her was in any way motivated by her litigation against Rush, it would not be actionable under section 1981.  Moreover, Katz's decision about what research projects to pursue-and with whom-are protected by the 1st Amendment.

Regarding Shott's allegations that Katz retaliated against her by requesting to examine her every 6 months as a condition of continuing her prescription, the court was rather blunt:

"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."

The case is Susan Shott v. Robert S. Katz, Case No. 15-3528 

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