Aquilino v. University of Kansas

83 F.Supp.2d 1248

Marie AQUILINO, Ph.D., Plaintiff, v. UNIVERSITY OF KANSAS, Defendant.

No. Civ.A. 99-2231-KHV.

United States District Court, D. Kansas.

February 11, 2000.

COPYRIGHT MATERIAL OMITTED

Alan V. Johnson, Stephen D. Lanterman, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, W. Thomas Stratton, Topeka, KS, for Marie Aquilino.

Rose A. Marino, Office of General Counsel, University of Kansas, Lawrence, KS, Barbara L. McCloud, University of Kansas, Office of the General Counsel, Lawrence, KS, for University of Kansas.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Marie Aquilino, a former faculty member at the University of Kansas, filed suit against the university, alleging that it refused to promote her to Associate Professor and award her tenure because of her sex, and that it subsequently refused to hire her as an ad hoc faculty member or adjunct professor because she had filed a sex discrimination charge with the EEOC, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended. The matter is before the Court on defendant's Motion For Summary Judgment Against Plaintiff Aquilino (Doc. # 23) filed December 15, 1999. For reasons set forth below, the Court sustains the motion in part and overrules it in part.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.

In August 1991, plaintiff, a white female, started work at the University of Kansas ("KU") as a tenure track Assistant Professor in the Kress Foundation Department of Art History (KFDAH or Department).

In and after 1993, the KFDAH gave plaintiff annual reviews which evaluated three factors: teaching, research and service. In the spring of 1993, Dr. Edmund Eglinski, KFDAH chair, gave plaintiff an annual review which rated her teaching and research as "very good" and her service as "outstanding."¹ In response to the evaluation, plaintiff sent Dr. Eglinski a letter which stated that the evaluation was "neither fair or accurate in its reflection on my contribution to the department and I am alarmed by its implications for my third year [pre-tenure] review." Plaintiff also stated that she was "left with the impression that there is little demonstrable support for my work, for the perspective of my teaching, or for my interests as a junior faculty member." Dr. Eglinski responded by noting that plaintiff received "mixed" student evaluations and that students had complained about the pace of lectures, tests, plaintiff's inaccessibility outside of class and hostility toward student questions.

In November 1993, the KFDAH asked plaintiff to provide materials for her third-year (pre-tenure) review. One purposes of the third-year review is for the Department to inform tenure-track faculty members whether they are then on track for promotion and tenure, and to suggest areas of improvement. On March 1, 1994, after a meeting of the tenured faculty members of the KFDAH, Dr. Eglinski consolidated the comments of the department and gave plaintiff a generally favorable pre-tenure review. Dr. Eglinski noted that "your performance as a teacher shows great promise [and is adequate to excellent] but there is a problem of perception that you are inaccessible and unsympathetic. Your research and service are appropriate for this stage of your career and meet our expectations." Plaintiff asked Dr. Eglinski how to address the "perception" problem regarding her teaching. Dr. Eglinski told her that she should be more like David (Dr. David Cateforis, one of plaintiff's male colleagues) and to "smile more." In the review, Dr. Eglinski wrote that "[i]t behooves you to soften your manner when advising students." One of the Department members, Dr. Stephen Goddard, wrote Dr. Eglinski a letter which noted his disagreement with the KFDAH evaluation. Dr. Goddard stated that he was surprised that the emotions of his colleagues "ran so hot" regarding plaintiff. When plaintiff attempted to discuss her third-year review with Dr. Charles Eldredge, he told her that she should drop her inquiries and leave the matter alone.

A sub-committee of the College Committee on Appointments, Promotion and Tenure ("CCAPT") analyzed the third-year, pre-tenure reviews of four departments at KU. On March 15, 1994, the sub-committee sent Dr. Eglinski a letter regarding plaintiff's review. The sub-committee encouraged Dr. Eglinski to conduct an annual internal review of plaintiff based on (1) rigorous peer review of class visits, (2) student evaluations, (3) formal evaluation of research and (4) on-going evaluation of service quality and record. KFDAH implemented some but not all of these suggestions.

On April 19, 1994, Dr. Eglinski gave plaintiff her annual evaluation, rating her teaching and service as "superior" and her research as "outstanding." For teaching, Dr. Eglinski noted that "[t]here are still complaints about inaccessibility."

In February 1994, plaintiff was awarded the J. Paul Getty Postdoctoral Fellowship in the History of Art. As a condition of the fellowship, plaintiff requested and received a leave of absence for the 1994-95 academic year.

On May 1, 1995, Dr. Eglinski gave plaintiff an annual evaluation which again rated her teaching and service as "superior" and her research as "outstanding." Because of her leave of absence, the evaluation only included plaintiff's teaching and service for the first half of 1994.

On May 1, 1996, Dr. Linda Stone-Ferrier, the department chair (after Dr. Eglinski), sent plaintiff her annual evaluation, again rating her teaching and service as "superior" and her research as "outstanding." Plaintiff's evaluation for teaching and service carried over from her prior evaluation because due to her fellowship, she did not teach classes or perform typical service in early 1995.

On March 14, 1997, Dr. Stone-Ferrier gave plaintiff an annual evaluation which rated her teaching as "unable to evaluate," her research as "outstanding" and her service as "very good." Plaintiff received the rating of "unable to evaluate" because she did not solicit student evaluations from her classes and the KFDAH did not receive any student evaluations for two of plaintiff's classes. Dr. Stone-Ferrier asked plaintiff about the missing evaluations. Plaintiff stated that she forgot to distribute them. After discussions with plaintiff and with her consent, Dr. Stone-Ferrier asked students to provide evaluations for the classes. The student evaluations ranged from "very good" to "excellent." After Dr. Stone-Ferrier received several evaluations, she asked Associate Dean Casagrande whether she should utilize the student evaluations. Dean Casagrande advised her that student evaluations solicited months after a course had been completed could not accurately reflect student opinions. Dean Casagrande instructed Dr. Stone-Ferrier to give plaintiff a rating of "unable to evaluate" for teaching. Although Dr. Stone-Ferrier did so, she included several un favorable student comments because plaintiff stated that it was not fair to omit all evaluations of her teaching. Dr. Stone-Ferrier also noted that plaintiff's rapport with students could be affected by the manner and style which she also exhibited in faculty meetings.

In March 1997, plaintiff wrote Dr. Stone-Ferrier, contesting the evaluation of her teaching because (1) Dr. Stone-Ferrier had not included any positive student comments, (2) p...