Lee v. The Vanderbilt Univ.

MEMORANDUM OPINION

ELI RICHARDSON UNITED STATES DISTRICT JUDGE

Pending before the Court is a Motion to Dismiss the First Amended Complaint^[1] filed by Defendant. (Doc. No. 37, “Motion”). An unredacted, sealed version of the Memorandum in Support of the Motion was filed at Docket No. 36, and a redacted version was filed at Docket No. 38. Plaintiff filed an unredacted, sealed Response at Docket No. 51, and a redacted version was filed at Docket Number 47. Defendant filed a Reply at Docket No. 54, with an appendix filed under seal at Docket No. 57.^[2] The parties also filed supplemental briefing after Plaintiff added a single paragraph to the Second Amended Complaint (Doc. No. 104), as discussed in more detail below.^[3]

Plaintiff also filed a Motion to Strike Portions of Defendant's Memorandum in Support of its Motion to Dismiss (Doc. No. 81, “Motion to Strike”) along with a Memorandum in Support of

the Motion to Strike (Doc. No. 83). Defendant responded. (Doc. No. 89). Plaintiff thereafter replied. (Doc. No. 91).

For the reasons discussed herein, the Motion will be granted.

FACTUAL BACKGROUND^[4]

Plaintiff, a female, was hired by Defendant in 2008 as an Assistant Professor in the Department of History of Art, with a secondary appointment in Classical and Mediterranean Studies. (Doc. No. 160 at ¶ 9). Plaintiff was a “spousal hire, ” meaning that Plaintiff was hired as an accommodation to retain her husband. (Id. at ¶ 13). A spousal hire can be either a male or female individual. (Id.).

Plaintiff alleges that male spousal hires on the tenure track are almost always granted a promotion to associate professor with tenure, but female spousal hires are rarely granted the same promotion. (Id. at ¶ 14). To support this assertion, Plaintiff provides a chart indicating that five unnamed females were denied tenure, and one was awarded tenure. (Id. at ¶ 15). In a comparison chart, two unnamed males were denied tenure, while eight were awarded tenure. (Id.). The charts are as follows:

Female Spousal Hire
Depieri Teuure	Awarded Tenure
Female 1	Female 6
Female2
Female 3
Female 4
Female 5

Male Spousal Hires
Denied Tenure	Awarded Tenure
Male 1	Male 3
Male 2	Male 4
Male 5
Male 6
Male7
Male8
Male 9
Male 10

Plaintiff first applied for a promotion to associate professor with tenure in 2015. (Id. at ¶ 16). Her department voted unanimously to recommend her for a promotion and tenure, each professor from another university who was consulted also recommended she be granted the promotion, and the Dean of College of Arts and Science recommended that she be promoted. (Id.).

Plaintiff was denied the promotion, allegedly as a result of false and fraudulent misrepresentations made to the Provost and the Promotion and Tenure Review Committee (“PTRC”) by agents and officers of Defendant. (Id. at ¶ 17). At this same time, a female colleague in the department (who was not a spousal hire) received a promotion and tenure (despite Plaintiff believing herself to have been more qualified). (Id. at ¶ 18). Plaintiff believes that her file presented a stronger application for tenure than this female colleague. (Id.).

Around July 13, 2016, Plaintiff filed a Grievance directed at Kevin Murphy, Chair of the Department of History of Art; Susan Wente, Provost and Vice Chancellor for Academic Affairs; and the PTRC. (Id. at ¶ 19). The Grievance asserted that Plaintiff was discriminated against when her application was denied, and included a claim that she was discriminated against as a female spousal hire. (Id. at ¶ 20). Plaintiff produced evidence that she had been denied a tenure-clock extension, which was typically granted to tenure-track employees who had children or suffered

serious health problems prior to being reviewed for tenure and promotion. (Id. at ¶ 21). Plaintiff had both become a parent and suffered major health issues during the relevant period. (Id.). The Committee reviewing the Grievance found that it had merit, and it recommended that Plaintiff be reviewed again for tenure during the 2018-2019 academic year and given an additional year of employment on her contract with Defendant. (Id. at ¶ 22). This recommendation was adopted by the Chancellor, without the making of specific findings against the individuals who were the subjects of the Grievance. (Id. at ¶ 23).

Shortly thereafter, in August 2017, Plaintiff and Murphy (who had been a subject of the Grievance) were having a meeting when Murphy raised his voice and berated Plaintiff for the statements made in the Grievance. (Id. at ¶ 24). Plaintiff reported the conversation. (Id.). Murphy assigned Plaintiff additional duties, allegedly to interfere with her ability to complete her research and receive tenure. (Id.). In September, Plaintiff attempted to transfer departments due to resentment against her, but her request was denied. (Id. at ¶ 25).

In 2018, Plaintiff Lee submitted another application for tenure and promotion with unanimous recommendations from external reviewers. (Id. at ¶ 30). Dean Greer (who had supervised the PTRC in 2016 and previously worked for Wente) explained the denial in a way that violated Defendant's own policies and relied upon false and misleading information. (Id. at ¶¶ 26, 29, 30).

PROCEDURAL HISTORY

Based on these circumstances, Plaintiff filed a state-court action against Defendant in the Chancery Court of Davidson County, Tennessee. In an order dated March 27, 2020, Chancellor Perkins denied a motion to dismiss that had been filed by Defendant. (Doc. No. 47-1, “Chancery Court Order”). Plaintiff then voluntarily dismissed that state court action and filed the instant

action in this Court on October 28, 2020. (Doc. No. 1). Thereafter, Plaintiff filed her First Amended Complaint-filed unsealed and in redacted form at Docket No. 25 and in sealed and unredacted form at Docket No. 66. Defendant then filed the instant Motion (Doc. No. 37), as well as the Memorandum in Support thereof (Doc. Nos. 36, 38), seeking to dismiss the First Amended Complaint.

Plaintiff thereafter moved for leave to file a Second Amended Complaint that would vary from the First Amended Complaint only in that it added the following paragraph, numbered 15A in the Second Amended Complaint:

In addition to the intentional discrimination alleged in Paragraphs 14 and 15 of the Complaint, Defendant Vanderbilt has also, on information and belief, intentionally discriminated against female assistant professors on the tenure track by terminating the employment of such females who are denied tenure after a terminal year of employment while transferring male tenure track assistant professors who are denied tenure to non-tenure track employment positions and continuing their employment beyond the terminal year. Plaintiff has not been transferred to a non-tenure track position but instead Defendant Vanderbilt has terminated her employment subjecting her to intentional gender discrimination and retaliation for her protected activity. Plaintiff has been injured by the foregoing intentional gender discrimination and retaliation.

(Doc. Nos. 79, 79-1 at 1). The Court thereafter granted Plaintiff such leave. (Doc. No. 96). Having indicated to the Court that its proposed Second Amended Complaint would do nothing more than add this additional paragraph, Plaintiff thereafter filed (in sealed and unredacted form at Docket No. 160 and in unsealed and redacted form at Doc. No. 104) a Second Amended Complaint that went beyond such a change; rather shamelessly, Plaintiff improperly took the opportunity to make some other changes (albeit mostly of essentially a merely cosmetic nature) to the First Amended Complaint, as Defendant's comparison of those two amended complaints shows. (Doc. No. 107-

1). But with one notable exception, ^[5] the Second Amended Complaint was essentially identical to the First Amended Complaint except insofar as it added paragraph 15A. Accordingly, Defendant requested that the Court consider the Motion, originally filed with respect to the First Amended Complaint, to be applied to the Second Amended Complaint and for the parties to have an opportunity to file supplemental briefing with respect to solely to the effect of paragraph 15A. (Doc. No. 97). The Court acceded to that request. (Doc. No. 101). Thereafter, however, the parties jointly moved to strike Paragraph 15A of the Second Amended Complaint. (Doc. 237 at 1). The Motion to Strike was granted. (Doc. No. 242). The Court will thus proceed in ruling on the Motion to Dismiss with Paragraph 15A of the Second Amended Complaint stricken and the

Court will

disregard this paragraph in so ruling. The Second Amended Complaint will remain the operative complaint for purposes of ruling on the Motion, ^[6] however, and the Court will consider the parties' above-described supplemental briefing related to the Second Amended Complaint only insofar as that briefing relates to any issues unrelated to Paragraph 15A.

The Complaint brings claims for discrimination and retaliation (Counts I and II), ^[7]violations of the Tennessee Human Rights Act (“THRA”)^[8] (Counts III and IV), and breach of contract (Counts V and VI).^[9] (Doc. No. 160).

LEGAL STANDARD

For purposes of a motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must take all the factual allegations in the complaint as true, as it has done above. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to...