Ivanova-Nikolova v. East Carolina Univ.

TATYANA T. IVANOVA-NIKOLOVA, PH.D., Plaintiff, v. EAST CAROLINA UNIVERSITY, Defendant.

No. 4:08-CV-209-BR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISION

Dated: June 17, 2011

ORDER

This matter is before the court on the 1 December 2010 motion for summary judgment filed by defendant East Carolina University ("ECU") and on ECU's 4 March 2011 motion to strike plaintiff's surreply brief and exhibits. The motions are now ripe for disposition.

I. BACKGROUND

Plaintiff Tatyana T. Ivanova-Nikolova ("plaintiff) began her employment at ECU on 1 August 1999 as a tenure-track Assistant Professor in the Department of Pharmacology and Toxicology in the Brody School of Medicine ("BSOM"). (Pl.'s Aff. Resp. Mot. Summ. J., Ex. 2, DE # 43-3; D. Taylor Aff., DE # 37-2, ¶ 5.)¹ Assistant professors at ECU are granted "probationary appointments" for a "probationary term." (Pl.'s Aff. Resp. Mot. Summ. J., Ex. 1, DE # 43-2, at 8-9; ECU's Mot. Summ. J., Ex. 18, DE # 37-25, at 7-8; D. Taylor Aff. ¶ 5.) ECUmust inform a professor whether he or she will be recommended for tenure at least twelve months before the end of the probationary term. (Id.)

Because ECU's rules require the "tenure clock" to begin on 1 July of each year, a faculty member who starts even one day later (e.g., 2 July) does not start his or her tenure clock until the following July. (A. Abdel-Rahman Aff., DE # 37-4, ¶ 11; D. Taylor Aff. ¶ 6.) Accordingly, plaintiff's probationary term commenced on 1 July 2000 and was scheduled to end on 30 June 2007, with consideration for tenure and promotion scheduled for academic year 2005-2006. (Pl.'s Aff. Resp. Mot. Summ. J., DE # 43, at 2; ECU's Mot. Summ. J., Ex. 2, DE # 37-9; D. Taylor Aff. ¶ 5.) Thus, plaintiff had eleven months of employment to begin her research before her tenure clock started. (A. Abdel-Rahman Aff. ¶ 11; D. Taylor Aff. ¶ 6.)

Plaintiff's candidacy was evaluated pursuant to the Department of Pharmacology and Toxicology's tenure guidelines. (Pl.'s Aff. Resp. Mot. Summ. J., Ex. 4, DE # 43-5; ECU's Mot. Summ. J., Ex. 20, DE # 37-27; P. Horns Aff., DE # 37-1, ¶ 19; D. Taylor Aff. ¶ 23; M. Dar Aff., DE # 37-6, ¶ 11.) Faculty in ECU's Department of Pharmacology and Toxicology are evaluated for tenure and promotion on the basis of research, teaching, and service, with research being the most heavily weighted. (A. Abdel-Rahman Aff. ¶ 13; D. Taylor Aff. ¶ 13.) To ensure that junior faculty members have enough time for research, their teaching and service duties are kept low. (D. Taylor Aff. ¶ 13.) As a junior faculty member, the percentage of weighting for plaintiff was 25 percent teaching, 10 percent service, and 65 percent research.² (A.Abdel-Rahman Aff. ¶ 13; D. Taylor Aff. ¶ 13; M. Dar Aff. ¶ 11; ECU's Mot. Summ. J., Exs. 3-7, DE ## 37-10 through 37-14.) Under departmental guidelines, plaintiff was expected to demonstrate excellence in at least two of the categories and satisfactory performance in the third. (Pl.'s Aff. Resp. Mot. Summ. J., Ex. 4, DE # 43-5, at 2; ECU's Mot. Summ. J., Ex. 20, DE # 37-27, at 1; D. Taylor Aff. ¶ 23.)

For the research category, by the time of her tenure review, plaintiff was expected to have published six full-length papers in peer-reviewed journals based on the work she performed at ECU.³ (Pl.'s Aff. Resp. Mot. Summ. J., Ex. 4, DE # 43-5, at 6; ECU's Mot. Summ. J., Ex. 20, DE # 37-27, at 5; D. Taylor Aff. ¶ 23; A. Abdel-Rahman Aff. ¶ 13.) Plaintiff also needed to successfully generate external funding, e.g., federal grants from the National Institutes of Health and private grants from companies, to support her research and laboratory for a minimum of three years. (Id.)

The department chair, David Taylor ("Taylor"), prepared annual "progress toward tenure letters" for plaintiff. (D. Taylor Aff. ¶ 15.) In September 2002, Taylor expressed concern about plaintiff's progress toward tenure, noting that she had published no papers. (ECU's Mot. Summ. J., Ex. 3, DE # 37-10, at 2; D. Taylor Aff. ¶ 16.) By academic year 2002-2003, plaintiff's progress toward tenure was "a growing source of serious concern." (ECU's Mot. Summ. J., Ex. 4, DE # 37-11, at 2; D. Taylor Aff. ¶ 16.) She had not published any papers, and she had not submitted any grant applications for extramural funding. (Id.) Although she had obtained some internal support for her research, plaintiff was informed that her "ability to be successful in thepromotion and tenure process could be in serious jeopardy unless there [was a] significant increase in effort and success devoted to research and creative activity." (Id.)

Although plaintiff's productivity improved during academic years 2003-2004 and 2004-2005, it was still a significant "source of concern." (D. Taylor Aff. ¶ 17; ECU's Mot. Summ. J., Ex. 5, DE # 37-12, at 2; ECU's Mot. Summ. J., Ex. 6, DE # 37-13, at 2.) Plaintiff published one paper each year, but still secured no external funding. (Id.)

In April 2005, plaintiff requested a one-year extension of her probationary term, "to comply with the internal requirements of the Department of Pharmacology and Toxicology for tenure and promotion." (ECU's Mot. Summ. J., Ex. 8, DE # 37-15; see also A. Abdel-Rahman Aff. ¶ 11; D. Taylor Aff. ¶ 7.) The department's tenure and promotion committee, consisting of professors M. Saeed Dar ("Dar"), Brian McMillen ("McMillen"), and chair Abdel Abdel-Rahman ("Abdel-Rahman"), considered plaintiff's request. (A. Abdel-Rahman Aff. ¶¶ 8, 11.) Although the request was unprecedented in the history of the department, the committee unanimously voted to support the extension. (ECU's Mot. Summ. J., Ex. 9, DE # 37-16; A. Abdel-Rahman Aff. ¶ 11; D. Taylor Aff. ¶ 7.) Taylor, the department chair, also supported the extension. (D. Taylor Aff. ¶ 7.) In May 2005, ECU granted the extension, extending plaintiff's probationary term by a year and delaying tenure consideration until the 2006-2007 academic year. (ECU's Mot. Summ. J., Ex. 10, DE # 37-17; D. Taylor Aff. ¶ 7.)

In March 2006, pursuant to ECU's tenure guidelines and the ECU Faculty Manual, plaintiff provided the names and addresses of several external peer reviewers to Abdel-Rahman. (Pl.'s Aff. Resp. Mot. Summ. J., Ex. 5, DE # 43-6; ECU's Mot. Summ. J., Ex. 20, DE # 37-27, at5; ECU's Mot. Summ. J., Ex. 18, DE # 37-25, at 16.) The external peer reviewers were individuals who were not affiliated with ECU but who were in a position to evaluate plaintiff's research productivity and scholarly work. (Id.) The department's tenure and promotion committee compiled a separate list of external reviewers. (Pl.'s Aff. Resp. Mot. Summ. J., DE # 43, at 5; A. Abdel-Rahman Aff. ¶ 9; D. Taylor Aff. ¶ 18.) As department chair, Taylor then solicited several external reviewers from the two lists to evaluate the quality of plaintiff's research and scholarly activity. (D. Taylor Aff. ¶ 18.) Plaintiff received very positive reviews from the external peer reviewers. (Pl.'s Aff. Resp. Mot. Summ. J., Ex. 6, DE # 43-7.) The external reviewers "expressed their unanimous high regard for [plaintiff's] research accomplishments, publications and grant proposals and their strong support of [plaintiff's] candidacy." (Pl.'s Aff. Resp. Mot. Summ. J., Ex. 20, DE # 44-4, at 6-7.)

The department's tenure and promotion committee examined plaintiff's application for tenure and promotion in November 2006. (A. Abdel-Rahman Aff. ¶ 12.) All three members of the committee agreed that her service was satisfactory. (M. Dar Aff. ¶ 12; B. McMillen Aff., DE # 37-7, ¶ 13; A. Abdel-Rahman Aff. ¶ 14.) Dar and McMillen thought that her teaching was satisfactory, while Abdel-Rahman had concerns. (Id.) For research, the most important criteria, all three agreed that plaintiff failed to meet the tenure expectations. (M. Dar Aff. ¶ 12; B. McMillen Aff. ¶ 14; A. Abdel-Rahman Aff. ¶¶ 13-14.) They thought that plaintiff's two publications were of high quality and were willing to double their value to count as four papers, but plaintiff still fell short of the expectation of six published papers. (M. Dar Aff. ¶ 12; B. McMillen Aff. ¶ 14; ECU's Mot. Summ. J., Ex. 20, DE # 37-27, at 5.) She had also failed to secure any external funding, even though she had been expected to obtain such funding tosupport her research for a minimum of three years. (Id.) The tenure and promotion committee found plaintiff's research program to be "plainly insufficient." (B. McMillen Aff. ¶ 14; see also M. Dar Aff. ¶ 12; A. Abdel-Rahman Aff. ¶ 14.) On 6 November 2006, the members of the committee unanimously voted to recommend against tenure and promotion. (Pl.'s Aff. Resp. Mot. Summ. J., Exs. 7-8, DE ## 43-8, 43-9; ECU's Mot. Summ. J., Ex. 11, DE # 37-18; A. Abdel-Rahman Aff. ¶ 15.)

After the departmental committee voted, plaintiff sought to add material to her personnel action dossier, including a list of her grant applications to the National Institutes of Health and the National Science Foundation. (D. Taylor Aff. ¶ 21; ECU's Mot. Summ. J., Ex. 12, DE # 37-19.) The committee reconsidered her candidacy in light of this material and returned the same recommendation. (D. Taylor Aff. ¶ 21; ECU's Mot. Summ. J., Exs. 13-15, DE ## 37-20, 37-21, 37-22.)

Following the departmental committee's decision, department chair Taylor considered plaintiff's application for tenure and promotion. (D. Taylor Aff. ¶¶ 22, 24.) He found her service satisfactory but determined that her teaching was not satisfactory. (Id. ¶ 24.) Taylor also found plaintiff's research program to be minimally productive with little promise for future success. (Id.) She did not meet the expectations relating to published papers and external grants, and she did not show excellence in any of the areas of service, teaching, or research. (Id. ¶¶ 24-25.) Comparing the department's guidelines against plaintiff's lack of productivity over seven years, Taylor determined that plaintiff was not a strong candidate and that she did not meet the standards for...