Nigel Noll v. Board of Regents of the University of Wisconsin System

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 31, 2022
Decided June 13, 2022
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-3176
NIGEL NOLL,
Plaintiff-Appellant,
v.
BOARD OF REGENTS OF THE
UNIVERSITY OF WISCONSIN
SYSTEM, et al,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 20-cv-293
Barbara B. Crabb,
Judge.
O R D E R
The Americans with Disabilities Act and the Rehabilitation Act protect disabled
individuals against discrimination and retaliation. Nigel Noll alleged violations of both
statutes after being dismissed from a Ph.D. program at the University of Wisconsin-
Madison. When the case reached summary judgment, Noll shouldered an obligation to
produce evidence from which a jury could infer a causal link between his acknowledged
disabilities and complaint about discrimination and dismissal from the graduate
program. The district court concluded that Noll failed to carry this burden. We agree and
affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 21-3176 Page 2
I
A
Nigel Noll intended to earn a Ph.D. when he enrolled as a graduate student in the
University of Wisconsin-Madison’s Department of Educational Psychology in the fall of
2014. And for three years, everything went according to plan: Noll excelled in his classes,
worked as a teaching assistant, and did research in a lab run by his advisor, Dr. Haley
Vlach.
But the outlook for his Ph.D. candidacy started to change in 2017. Typically, the
Department’s faculty votes to admit a graduate student into the program only after the
student successfully writes and defends a master’s thesis. Ideally students do so within
three years. Aspirational deadlines in summer and fall 2017 came and went, with Noll
sending several underdeveloped drafts of his thesis to Dr. Vlach and another advisor, Dr.
Chuck Kalish. By January 2018, both advisors had grown concerned about Noll’s halting
progress.
In February 2018, Noll met with Drs. Vlach and Kalish and requested an additional
two weeks to complete his thesis as he worked to manage a change in his medication.
Drs. Vlach and Kalish readily agreed to the extension. Noll did not tell either advisor that
the accommodations were related to his long-standing diagnoses for bipolar disorder and
ADHD.
Noll eventually completed and defended his thesis in late May 2018. Dr. Vlach met
with him after the presentation and informed him that, while he had done a good enough
job to earn his master’s degree, his thesis lacked clarity and precision and reflected an
ongoing struggle to apply theoretical principles to his practical research. Dr. Vlach also
told Noll that she had decided to withdraw as his advisor, as she no longer believed she
could be an effective academic and career mentor. Dr. Vlach went further and informed
Noll of her concern that he would not pass the Ph.D. program’s required preliminary
examination if he chose to test on topics related to the research he had performed in her
lab.
Shortly after this meeting, Noll met with Dr. B. Bradford Brown, chair of the
Department of Educational Psychology, and complained that Dr. Vlach had
discriminated against him based on his disability. Noll pointed to two decisions that post-
dated his disclosure of his disability: the Department’s denial of his application for a
teaching assistant position for the 2018–2019 academic year and Dr. Vlach’s withdrawal

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No. 21-3176 Page 3
as his advisor. Dr. Brown investigated Noll’s concerns and spoke with each member of
Noll’s thesis committee, but ultimately found no merit to the allegations of disability
discrimination.
Dr. Brown then put Noll’s ongoing admission to the Ph.D. program to a faculty
vote in mid-July 2018. Before the meeting, Dr. Brown helped Noll find a different faculty
member willing to serve as his advisor for the remainder of his program. At the
meeting—and without saying a word about Noll’s disability—Dr. Brown gave the voting
faculty an overview of Noll’s background and performance in the program. For her part,
Dr. Vlach also answered a few specific questions that the faculty had about Noll’s
academic abilities and offered her own view that he had been slow to learn key concepts
and missed important deadlines throughout his first four years in the program. The
faculty then voted 12-1 against Noll’s continued enrollment in the Ph.D. program. Only
thirteen of the fifteen faculty members at the meeting voted, with Dr. Vlach later
testifying that she abstained from casting any vote.
B
In 2019, Noll filed suit against the Board of Regents and Drs. Vlach and Brown
alleging discrimination and retaliation under the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. In its
summary judgment opinion and order, the district court dismissed Noll’s claims against
Drs. Vlach and Brown, explaining that individuals are not proper defendants under
either enactment. The district court also entered summary judgment for the Board,
concluding that Noll failed to identify any evidence permitting the inference that the
Board made any of the challenged decisions because of his disability or in response to his
complaint of discrimination.
Noll now appeals.
II
A
We begin with two threshold matters that frame the scope of Noll’s appeal.
First, Noll’s claim that Dr. Vlach’s decision to withdraw as his academic advisor
amounted to disability discrimination is not part of this appeal. The parties litigated this
issue in the district court, which thoroughly analyzed it in a well-reasoned decision. In
our court, though, Noll’s opening brief discussed Dr. Vlach’s withdrawal not as a

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standalone claim, but instead as part of the larger (and in his view, escalating) sequence
of events leading to his dismissal from the Ph.D. program. Because Noll does not press
the claim on appeal, it is abandoned.
Second, and inversely, Noll tries on appeal to broaden his theory of disability
discrimination by urging that his dismissal from the program amounted to an adverse
event for purposes of both his discrimination and retaliation claims. But he never
advanced that claim and theory of liability in the district court, which analyzed his
dismissal solely through a retaliation lens. It is too late in the litigation for Noll to reframe
his claims. See, e.g., Mahran v. Advocate Christ Med. Ctr., 12 F.4th 708, 713 (7th Cir. 2021)
(explaining that issues raised for the first time on appeal are waived).
B
That leaves just two claims for our review: that the Department of Educational
Psychology’s failure to hire Noll as a TA for the 2018–2019 academic year constituted
disability discrimination, and that the faculty’s decision to discharge him from the Ph.D.
program reflected retaliation for Noll’s complaints about disability discrimination. After
taking our own close look at the summary judgment record, we agree with the district
court that Noll failed to develop sufficient evidence permitting a jury to find in his favor
on either claim.
At summary judgment, a court must “consider all of the evidence in the record in
the light most favorable to the non-moving party” and “draw all reasonable inferences
from that evidence in favor of the party opposing summary judgment.” Donald v. Wexford
Health Sources, Inc., 982 F.3d 451, 457 (7th Cir. 2020) (internal quotations omitted). But the
non-moving party cannot sit back and rest solely on its briefing in opposition for its
claims to advance to trial. Rather, “as the now familiar trilogy of 1986 cases from the
Supreme Court established, if the non-movant does not come forward with evidence that
would reasonably permit the finder of fact to find in her favor on a material question,
then the court must enter summary judgment against her.” Waldridge v. Am. Hoechst Corp.,
24 F.3d 918, 920 (7th Cir. 1994) (emphasis in original) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574 (1986), Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).
Noll fell short of meeting this evidentiary burden at summary judgment. He insists
that his failure to secure a TA position in the Department of Educational Psychology for
the 2018–2019 academic year was a product of disability discrimination. The Board
accepts that Noll has a diagnosed disability and that his being passed over for this

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particular TA position constituted an adverse action. But both the ADA and the
Rehabilitation Act, the Board rightly emphasizes, “require[] proof of causation” in
disability discrimination claims—“both statutes prohibit discrimination against
individuals ‘by reason of’ the disability, or ‘on the basis of’ the disability.” A.H. by
Holzmueller v. Ill. High Sch. Ass’n, 881 F.3d 587, 593 (7th Cir. 2018). So to survive summary
judgment, Noll had to come forward with evidence sufficient to create a material dispute
of fact as to whether, but for his disability, he would have been selected for the TA
position. See id. at 593–94.
He did not. In May 2018, Dr. Vlach told Noll that the Department of Educational
Psychology made TA decisions based on a range of factors, including whether applicants
had prior teaching experience and their status in the graduate program. She further
explained to Noll that his having fallen behind in the preparation of his master’s thesis
and prior service as a TA resulted in his being placed on a waitlist for the position.
As Noll views the facts, Dr. Vlach’s reference to the timeliness of his progress
through the graduate program shows discrimination against him in the TA selection
process. On this view, Dr. Vlach accommodated his disability by affording him two extra
weeks to complete his thesis, but then turned around and held that extra time against
him when he applied for a TA position. In short, Noll sees Dr. Vlach as engaging in a bait-
and-switch that amounted to disability discrimination.
The summary judgment record does not support such an inference, even when
viewed in the light most favorable to Noll. Noll was nearly an entire year behind schedule
in defending his master’s thesis by the time he applied for the TA position. His disability
accommodation only accounted for two of those approximately fifty-two weeks, and Noll
has not offered any evidence that but for the two-week extension the Department would
have selected him as a TA.
Even if Noll had done enough to establish a prima facie case of causation, he has
not identified any evidence creating a factual dispute about whether the legitimate, non-
discriminatory reasons Dr. Vlach and the Board gave for why he was waitlisted—that he
had already worked as a TA, that he was in the later stages of his program, and that he
had a good history of funding—were pretextual. See, e.g., Novak v. Bd. of Trs. of S. Ill. Univ.,
777 F.3d 966, 974, 976 (7th Cir. 2015) (explaining that, to show pretext, a plaintiff “must
demonstrate that th[e] reason constitutes a mistruth—a lie on the part of the defendants”).
Noll’s retaliation claim suffers from the same evidentiary shortcoming. He
contends that the faculty’s 12-1 vote to discharge him from the Ph.D. program reflected

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retaliation for his May 2018 complaint to Dr. Brown about Dr. Vlach’s alleged
discrimination—a protected activity under both the ADA and the Rehabilitation Act. But
here, too, there is a dearth of evidence in the summary judgment record on causation.
“To establish a causal relationship between the protected activity and [an adverse action],
a plaintiff must show that the decisionmaker was aware of the protected activity at the
time the alleged retaliation occurred.” Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 124
(7th Cir. 2021) (explaining causation in the related Title VII context).
The parties agree that neither Dr. Vlach nor Dr. Brown disclosed to the
Department’s faculty that Noll had a disability or sought a two-week extension as an
accommodation. And the record is equally clear that Brown did not disclose Noll’s
discrimination complaint to any faculty member he spoke to while investigating the
allegations. Even taking the record evidence in the light most favorable to Noll, then, the
district court properly entered summary judgment for the Board on Noll’s retaliation
claim. The voting faculty could not have been retaliating against Noll for making a
complaint they knew nothing about.
Noll’s allegations of ADA and Rehabilitation Act discrimination and retaliation
needed only be plausible to get to discovery. But by the time his case reached summary
judgment, more was required. Rule 56 places a comparatively low evidentiary burden on
non-movants opposing summary judgment, but Noll did not carry it as to either his
discrimination or retaliation claim. And so we AFFIRM.

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