The Madison County Record Aug. 8, 2016, 3:59pm


BENTON – U.S. Senior District Judge Phil Gilbert entered judgment for Southern Illinois University in seven straight cases prior to joining SIU’s board of trustees.

 

Seventh Circuit appellate judges in Chicago recently called these judgments into question, without intending to do so.

 

Their May 4 opinion justifying Gilbert’s dual role as federal judge and university trustee declared that he was “eager to serve SIU.”

 

They stressed sentiment, writing that Gilbert’s grandfather taught there and that his father, as a legislator, secured funding for the university’s expansion.

 

The judges in Chicago justified themselves as they justified Gilbert, for their own appellate court affirmed three of the seven judgments.

 

They affirmed one judgment five days after Gov. Bruce Rauner appointed Gilbert as a university trustee.

 

No parties moved to disqualify Gilbert.

 

Federal judges must disqualify themselves under various circumstances including cases of personal bias or prejudice concerning a party.

 

Regulations and cases shed little light on Gilbert’s former situation, however, for they generally involve bias or prejudice against a party.

 

Gilbert was nominated by President George H.W. Bush and was seated in 1992. He assumed senior status on March 15, 2014.

 

His dockets show minimal contact with university cases until 2007, when he inherited one upon the retirement of the late district judge James Foreman.

 

In it, former leaders of African-American sorority Zeta Phi Beta claimed the university disciplined them more harshly than White fraternity brothers.

 

Chapter president Nakia Collins, vice president Tequeira Johnson, and graduate student Monet Williams had paddled a pledge and otherwise caused her pain.

 

The university suspended Collins and Johnson for three years, Williams for two.

 

The sorority leaders claimed the university didn’t discipline any brothers at Pi Kappa Alpha after a drunken pledge drowned in 2004.

 

They claimed the university suspended three White pledges at Delta Chi for a year and placed a fourth on probation, for duct taping a naked pledge to a tree in 1998.

 

Gilbert set trial but called it off and granted summary judgment to the university.

 

He found he couldn’t compare the drowning case to the paddling case because the drowning case didn’t involve discipline of any individual student.

 

According to Gilbert’s order:

 

The university banned Pi Kappa Alpha permanently. Police charged the student who provided alcohol to the pledge, and the student paid a fine.

 

The student who provided alcohol to the pledge held no position of authority, unlike Collins, Johnson and Williams.

 

Plaintiffs apparently marshaled facts of the incident from the campus newspaper, the Daily Egyptian.

 

“The facts remain unclear because SIU did not take any disciplinary action against individual members of the fraternity,” Gilbert wrote.

 

While plaintiffs contended that Pi Kappa Alpha was historically White, they offered no evidence that it didn’t allow others to join.

 

The duct tape incident was dissimilar too.

 

“Power dynamics in the Zetas incident – hazing by the president, vice president and a graduate student – were not present,” Gilbert wrote.

 

Campus police filed a complaint, not the pledge.

 

Williams, Collins and Johnson appealed, without success.

 

Circuit Judge Richard Posner wrote, “Is hazing, a form of deliberate misconduct, less censurable than carelessness with regard to alcohol and risk management?

 

“And is permanently banning an entire fraternity from campus forever a milder punishment than suspending three members of a sorority for two or three years?”

 

“That leaves, for possible meaningful comparison with the incident in this case, just the pledge tied to a tree.”

 

Posner wrote that the victim was not hurt physically, as the Zeta Phi Beta pledge was, and that he did not file a complaint, as she did.

 

Milligan v. SIU

 

Gilbert viewed power dynamics differently in a harassment case involving student Samuel Milligan, age 18, and professor emeritus Cal Meyers, age 79.

 

Milligan sued the university in 2009, claiming it failed to protect him from Meyers.

 

His suit claimed university officials tried to discourage him from filing a complaint, because of Meyers’s importance.

 

Milligan claimed Meyers ignored official orders to leave him alone.

 

He claimed the university resolved a similar complaint about Meyers in 1997.

 

The university moved for summary judgment and Gilbert granted it in 2010, finding it responded reasonably to Milligan.

 

According to Gilbert’s order:

 

Meyers didn’t work for the university but for a foundation he funded.

 

Milligan worked in a stock room across from Meyers’s office.

 

Meyers told Milligan that with his hair, he would make a sexy lady.

 

Meyers told Milligan he would date him if he were a girl.

 

Meyers touched Milligan twice.

 

“The court concludes that no reasonable jury could find that Meyer’s harassment of Milligan was objectively severe or pervasive enough to alter the terms and conditions of his employment or to create a hostile work environment,” Gilbert wrote.

 

“To be sure, Meyers was boorish and behaved outside socially acceptable norms.

 

“However, his offensive conduct involved only two instances of touching, one on the buttocks and one on the lower abdomen.”

 

“While this constitutes excessive physical intrusion, both instances were fleeting.”

 

The university’s response “was hardly a model, but it was reasonable, and it was effective to stop Meyers’s harassing conduct,” he wrote.

 

On appeal, two of three judges on a panel at the Seventh Circuit affirmed Gilbert.

 

District Judge Gary Feinerman, sitting by designation, wrote that the university responded reasonably.

 

Feinerman wrote that the record supported a notion that university officials tried to discourage Milligan from pursuing the matter due to Meyer’s importance.

 

“If a comparable situation were to arise in the future, SIU would be well advised to focus solely on whether the accusation is valid and not at all on the accused’s stature on campus,” Feinerman wrote.

 

Circuit Judge Ilana Rovner concurred.

 

Dissenting Circuit Judge Kenneth Ripple would have remanded for trial.

 

“The jury might conclude that, given the plaintiff’s age, education, experience and his student worker status, the response of the university was indeed negligent,” Ripple wrote.

 

“The absence of another attack by a predator is no solution if the employer’s remedy nevertheless leaves the victim in fear of another imminent strike.

 

“An institution of higher learning assumes special responsibilities for all students, but especially undergraduate students, who undertake such a formative educational experience within its walls.

 

“A breach of that trust, even in a work environment, can have dire consequences to a neophyte in the halls of higher education.”

 

Fitzmaurice  v. SIU; Everett v. SIU

 

In 2012, Gilbert disposed of two suits from plaintiffs without lawyers.

 

In one, John Fitzmaurice of Makanda claimed the university denied him employment on inaccurate and incomplete information.

 

He sought $3,000 in compensatory damages and $130,000 in punitive damages.

 

Gilbert dismissed the suit for lack of jurisdiction, writing that he couldn’t detect any claim arising under the Constitution, laws or treaties of the United States.

 

In another pro se case, Patricia Everett of Alton sued SIU and other schools to clear her name of federal student loans that weren’t disbursed to her.

 

Gilbert directed the court clerk to send her a guide for pro se litigants, with advice that she must specify the basis for the court’s jurisdiction.

 

Everett amended her complaint, and Gilbert dismissed it because he still couldn’t discern a basis for jurisdiction.

 

McVey v. SIU

 

Also in 2012, a former electrician’s disability discrimination suit bounced to Gilbert from Central Illinois district court in Springfield.

 

Marion McVey of Moweaqua sued the university there in 2011, without a lawyer, asserting jurisdiction due to the presence of an SIU campus in Springfield.

 

McVey claimed he could have resumed his duties as electrician if the university had reasonably accommodated a back injury.

 

He sought damages for loss of salary and benefits, emotional suffering, embarrassment, loss of enjoyment of life, and mental anguish.

 

The university moved for transfer to Southern Illinois, and District Judge Richard Mills granted the motion.

 

Thomas Falb of Alton entered an appearance for McVey in Gilbert’s court, and he moved to add a claim for breach of contract in 2013.

 

Magistrate Judge Phil Frazier denied the motion, finding that a scheduling and discovery order required amendments by Dec. 30, 2012.

 

The order he cited, from Nov. 1, 2012, set no deadline for amendments.

 

The university moved for summary judgment, and Falb responded by condensing his client’s case better than his client had done.

 

“Plaintiff had multiple run-ins with the defendant’s administration beginning with his complaints concerning a supervisor and his ethics,” Falb wrote.

 

“Plaintiff received a discipline of 30 days off, returned to work to be disciplined again where the defendant attempted to terminate him for the same wrongdoing as well as being insubordinate and insolent.

 

“Pre litigation activities took place and a settlement took place between plaintiff and defendant where plaintiff would continue working but be transferred to a different department of the university.

 

“However, after his transfer to a different department, the hierarchy of the university still wanted to get rid of plaintiff.

 

“Once plaintiff claimed disability, this turned into a green light for the university to violate the settlement agreement and rid the university of the plaintiff, which they did.”

 

Gilbert granted summary judgment in December 2013, ruling that the evidence could not support a finding of disability.

 

“There is simply nothing from which a reasonable jury could conclude that McVey’s impairment substantially prevents him from working in a broad range of jobs, as opposed to the specific job of electrician,” Gilbert wrote.

 

He wrote that an electrician must lift more than 75 pounds.

 

“Even with the help of another worker, McVey cannot shoulder his burden of carrying half that weight,” he wrote.

 

“There is a difference between what a worker can conceivably do and what his doctor says he can do safely, and just because he can do a task does not mean he is qualified to do it.”

 

One suit collapsed before reaching the first hurdle.

 

Long v. SIU

 

African-American architect Patrick Long filed suit in 2013, claiming university officials should have interviewed him for manager of campus architects.

 

His lawyers, Jeff Ezra and Robert Ramsey of Collinsville, claimed the facilities management department followed a policy that African-American males were not capable of holding managerial or supervisory positions.

 

The university moved for summary judgment and won without a fight.

 

Long stipulated that he had no facts with which to contest the motion, in consideration of the university’s agreement not to seek costs against him.

 

Gilbert construed the stipulation as a motion to dismiss the suit, and he dismissed it in February 2014.

 

Novak v. SIU

 

Later in 2014, Gilbert granted summary judgment to the university on a disability discrimination suit from the College of Education.

 

Patrick Novak filed it in 2012, claiming officials violated the Rehabilitation Act and disability law by dropping him from a doctoral program.

 

His lawyer, Darrell Dunham of Carbondale, alleged that Novak’s post traumatic stress disorder caused his termination.

 

Dunham wrote that officials should have let Novak retake tests and measurements where the outcome did not reflect his historic performance.

 

He wrote that they should have given Novak additional time to complete tests and assignments, and that they should have provided a tutor.

 

He wrote that Novak’s performance met the standards for obtaining a degree in the College of Education.

 

Novak sought damages in excess of $1.5 million for illegal and unjust practices.

 

The court clerk assigned Senior Judge William Stiehl, but he recused himself and the clerk assigned Gilbert.

 

In 2013, the university moved for summary judgment.

 

Gilbert granted it on July 3, 2014, while Rauner ran for governor.

 

“There is evidence that some faculty at SIU were mildly or more seriously disturbed by some of their contacts with Novak or that they may have been unfair to him on occasion, but that evidence is not tied to his PTSD or the defendants’ decisions to give him a failing mark,” Gilbert wrote.

 

“On the contrary, the evidence shows the defendants provided every reasonable accommodation requested by Novak or his psychologist, bent over backward to give him opportunities and assistance beyond those required by department policy to pass his prelims, and gave him failing marks based on the content and substance of his exam responses.”

 

Gilbert quoted a U.S. Supreme Court decision making it “crystal clear that courts should be loathe to interfere with academic judgments of teaching professionals.”

 

In a footnote he expressed dismay at “repeated misrepresentation of evidence” in Dunham’s brief opposing summary judgment.

 

“Plaintiff’s counsel is warned that further misrepresentation of this nature may result in sanctions,” Gilbert wrote.

 

Novak appealed.

 

On Feb. 27, 2015, Rauner appointed Gilbert to the university board of trustees.

 

On March 4, 2015, the Seventh Circuit affirmed Gilbert’s judgment against Novak.

 

Ripple wrote that evidence at the very most would show that lapses in assessment methods might have resulted in unfairness.

 

He found any inference of discriminatory intent unreasonable in light of evidence that the university bent over backwards to help Novak pass his prelims.

 

Posner and Circuit Judge Michael Kanne concurred.

 

Gilbert has not ruled against Southern Illinois University in any cases before him.

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