McNutt v. Nasca

PROFESSOR LOUISE-ANNE MCNUTT, Plaintiff,

v. PHILIP NASCA, individually and as Dean of the School of Public Health,and STATE UNIVERSITY OF NEW YORK AT ALBANY, Defendants.

1:10-CV-1301(MAD/RFT)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: January 17, 2013

APPEARANCES:

CREIGHTON, JOHNSEN & GIROUX

Attorneys for Plaintiff

ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

Attorney for Defendants

OF COUNSEL:

Jonathan G. Johnsen, Esq.

James Seaman, Esq.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiff Louise-Anne McNutt ("McNutt" or "plaintiff") commenced this action alleging that her employers, defendants Philip Nasca ("Nasca") and State University of New York at Albany ("SUNY Albany" or "the University") unlawfully discriminated against her in violation of Title VII of the Civil Rights Act of 1962, as amended, 42 U.S.C. § 2000e et seq., ("Title VII"); the Equal Pay Act, 29 U.S.C. § 206 ("EPA"); New York State Executive Law § 290 et seq. ("New York State Human Rights Law" or "NYSHRL"); and the Fourteenth Amendment EqualProtection Clause. Presently before the Court is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 25). Plaintiff has opposed the motion. (Dkt. No. 29).

BACKGROUND¹

School of Public Health

In 1985, the School of Public Health ("SPH") was created as a collaborative endeavor between the State University of New York ("SUNY") and the New York State Department of Health ("DOH"). There are four academic departments within the SPH: Epidemiology and Biostatistics ("Epi-Bio"); Biomedical Sciences; Environmental Health Sciences; and Health, Policy Management and Behavior. Assistant professors or "junior faculty" at SPH are hired to work nine months per year under a three year contract and are not tenured. Toward the end of their second three-year contract, the assistant professor can seek promotion and continuing appointment ("P & C") to the rank of associate professor. If successful, the individual is promoted to associate professor and granted tenure. Each professor is assigned a faculty office in the SPH. Space is not guaranteed to faculty but allocated based upon funded research needs. Professors with externally funded research may request the assignment of cubicle offices for graduate assistants who are employed to work on those externally funded grants. Faculty members who have projects with New York State agencies under the terms of Memorandum of Understanding ("MOU") which includes budgeting for graduate assistants, usually have the graduate assistant physically work at the agency which is funding the MOU.

When an MOU is entered into between the DOH and the University, the work to be done and the amount of money the University will received from DOH for the work are outlined. Generally, after the MOU is drafted, it is signed by a DOH representative and then by a SPH representative, typically the dean or his designee. Finally, the MOU is signed by a representative of the Controller's office at the University. Five original versions of the MOU are executed. Usually, once the MOU is finalized, the Controller forwards one signed original to the SPH, another to the professor's department, and another to DOH. The remaining originals are retained by the Controller's office, one in purchasing and the other in accounting. Nicole Malachowski ("Malachowski") was the Assistant Chair in Epi-Bio and responsible for managing the department's financial accounts created to handle funding for MOUs. Malachowski typically receives the department's signed, originally executed MOUs.

In January 1995, plaintiff accepted a position as visiting professor at SUNY Albany. In the Fall of 1997, plaintiff became an assistant professor at SUNY Albany. At that time, David Strogatz ("Strogatz"), was the incoming department chair. Strogatz told plaintiff "you have six years to prove yourself". Plaintiff did not receive any written confirmation of that statement. In 2002, plaintiff was granted a promotion and continuing appointment as a tenured professor. Ed Fitzgerald ("Fitzgerald"), who was employed and teaching at the Epi-Bio Department at SPH at the time, voted in favor of plaintiff's promotion.

In the Fall of 2007, Philip Nasca was appointed Dean and the Head Administrator of the SPH. At approximately the same time, Fitzgerald was appointed chair of the Epi-Bio Department. Due to the trend in academia toward a greater reliance on research and attracting funding, Nasca lowered the minimum course load for professors from four courses to three courses per academic year to afford professors additional time for research. In December 2007,plaintiff began serving as associate chair in Epi-Bio and agreed to serve for two full years in exchange for being relieved of teaching one class during the Spring 2010 semester. In January 2009 or February 2009, plaintiff resigned from the Associate Chair position.

Roxana Moslehi's Contract Renewal

When Nasca became Dean, all departments within the SPH, except the Epi-Bio Department, "rigorously reviewed" a junior faculty member's progress when determining whether the member was entitled to a second three-year contract. At that time, Nasca directed Fitzgerald to employ "meaningful reviews" of all junior faculty. Plaintiff, who was associate chair, was not informed of Nasca's "new policy" regarding the review process for assistant professor contract renewals. At the May 21, 2008 faculty meeting, Assistant Professor Roxana Moslehi's ("Moslehi") contract renewal application was discussed. The substance of the discussions during that meeting is largely disputed by the parties.² Plaintiff was on sabbatical in the Republic of Georgia and did not attend the meeting. Fitzgerald claims that Strogatz and Professor Larry Schell presented Moslehi's application to the faculty and that a female faculty member made a motion that Moslehi be approved for one year. After a vote, Moslehi's contract was renewed for one year.³

In June 2008, plaintiff returned and complained to Fitzgerald about the process used for Moslehi's contract renewal and requested that he have it "re-done". Fitzgerald refused. During their conversation, Fitzgerald commented that Moslehi was not a "team player".

Teaching Assistants

On July 22, 2008, Fitzgerald sent an e-mail to plaintiff regarding teaching assistant assignments:

I've asked Judy to set-up a meeting to discuss TA assignments. It would be good for you to attend if possible, since I would like to offer you a TA to help with 612. Please let her know your availability.

During previous semesters, a teaching assistant had not been provided for Epi 612.

In August 2008, Fitzgerald held a meeting of professors who were scheduled to teach the core methods courses in Epi Bio that Fall. Fitzgerald claims that Professors Strogatz, Erin Bell, Akiko Hosler and Kristin McClamoroch were in attendance. Fitzgerald also claims that Malachowski attended the meeting.⁴ Plaintiff did not attend however, the parties dispute the reasons for plaintiff's absence and the sum and substance of what transpired during the meeting.⁵ During the meeting, the decision was made not to assign a teaching assistant to Epi 612 for the Fall 2008 semester.

Office Relocation

In January 2009, renovations began at the East Campus.⁶ The research space shared by the graduate students assigned to plaintiff and Strogatz was converted to a pantry for the department. Thus, research staff for both professors was forced to relocate. At the relevant time, Strogatz was working as a principal investigator ("PI") on a $500,000.00 funded grant which included payment for several research staff. Plaintiff requested space for one graduate assistant who was relocated to a new office on the second floor. According to Larry Preston ("Preston"),the Assistant Dean of Administration in the SPH, plaintiff requested that the cubicle be secured with a door and a lock. Preston claims that a lock and door were installed on February 23, 2009.⁷

Locked storage space was provided and faculty members were advised, but not required, to purchase a locking bar for individual cabinets since people had access to the secure area. At that time, Moslehi had a second Epi-Bio faculty office. Sometime after February 2009, Moslehi allowed plaintiff to store some research materials in Moslehi's Epi-Bio office. Some months later, a secure records storage room was created directly across from plaintiff's office and her materials were relocated to that room.

Student Cheating Issue

On February 4, 2009, the Epi-Bio doctoral qualifying examination was held. The graders for the examination were Kristin McClamroch, Michael Bloom and Fitzgerald.⁸ On February 3, 2009, the answer key for the exam was sent to those faculty members and Strogatz. While the exams were being graded, the other graders advised Fitzgerald that they suspected that one student cheated based upon the similarity of the student's answers to the answer key as well as the order in which the answers were given. Upon blind review, without knowing the name of the student, Fitzgerald identified the suspicious exam and, after identifying the student, spoke with Dean Nasca. At the Dean's suggestion, the suspect examination was also reviewed blindly by Mary Applegate ("Applegate"), the Associate Dean for Academic Affairs. Applegate was convinced that the doctoral student had cheated. Nasca, Applegate and Fitzgerald met with thestudent and Fitzgerald prepared a Violation of Academic Integrity Report, initiating the administrative review process at the University for adjudicating a disciplinary charge. The report, dated March 4, 2009, stated that the student had access to the office of a faculty member who had the answer key. Plaintiff was the student's advisor and provided her doctoral students with keys to her faculty office. In a March 7, 2009 confidential e-mail to Nasca, plaintiff concluded that it was, "unequivocal that she...