April 26, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 C 4863-
Virginia M. Kendall, Judge.
Kanne, Sykes, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
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 workplace. The district
court dismissed her complaint for failure to state a claim.
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 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. 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 increase 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).
her second lawsuit against Rush was pending, Shott also sued
Katz, whom she had occasionally helped with statistical
analysis. She alleged that, in retaliation for her ongoing
litigation against Rush, Katz impeded her career advancement
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."
was also Shott's treating rheumatologist. She also
accused 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 only if she would come in for an examination
every six months, a requirement that she found inappropriate.
district court dismissed Shott's complaint for failure to
state a claim. The court explained that Katz's alleged
withholding of medical treatment did not state a claim for
retaliation under § 1981 because Shott had not alleged
that Katz's medical care affected her employment. The
court also concluded 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
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 becomes an appealable 'final
decision' once the time for correction has expired,
whether or not the court enters a final judgment." 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 prejudice 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 appeal.
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 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. Monica'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").
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 Education, 637 F.3d 729,
740-42 (7th Cir. 2011). "Individual employees can be
held liable under Section 1981 if they 'participated'
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.
contends that the district court construed § 1981 too
narrowly by requiring her to allege that Katz's acts of
retaliation were related to an adverse employment
action. As a general matter, we agree with her that the
court's focus on employment was unwarranted. The statute
forbids any retaliatory actions that are
"harmful to the point that they could well 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
workplace" except that their harm must have been caused
by contractor 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).
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 under 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 disapproval of her
litigation against Rush, that would not be actionable under
§ 1981. We held in Smith v. Bray, 681 F.3d 888,
898- 900 (7th Cir. 2012), that an individual employee could
be liable 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 plaintiff's fellow employees violate the
implied retaliation prohibition in § 1981 by not seeking
out the plaintiff to collaborate on professional projects.
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 holding him liable for
violating Shott's civil rights. See Trejo v.
Shoben, 319 F.3d 878, 884 (7th Cir. 2003) (First
Amendment protects faculty member's right to participate
in "academic debates, pursuits, and inquiries");
Dow Chemical Co. v. Allen, 672 F.2d 1262, 1275 (7th
Cir. 1982) (recognizing that right to academic freedom
includes right to carry on research without interference from
fellow faculty members); McElearney v. University 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 ...