Osher v. Univ. Of Me. System

703 F.Supp.2d 51

Laurie OSHER, Plaintiff,v.UNIVERSITY OF MAINE SYSTEM, Defendant.

No. CV-09-73-B-W.

United States District Court D. Maine.

April 7, 2010.

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Arthur J. Greif, Julie D. Farr, Lisa J. Butler, Gilbert & Greif, P.A., Bangor, ME, for Plaintiff.

Anne-Marie L. Storey, Rudman & Winchell, Paul W. Chaiken, Rudman & Winchell, Bangor, ME, for Defendant.

ORDER ON DEFENDANT UNIVERSITY OF MAINE SYSTEM'S MOTION FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

On February 2, 2007, the University of Maine System (System) denied promotion to tenure to Laurie Osher, Ph.D., in the Department of Plant, Soils, and Environmental Sciences (Department) at the University of Maine (University). On January 29, 2009, Dr. Osher, who is disabled and lesbian, sued the System, claiming retaliation under the Maine Whistleblower Protection Act (MWPA), the Maine Human Rights Act (MHRA), Title VII of the Civil Rights Act of 1964 (Title VII), and 42 U.S.C. § 1983 (§ 1983). Dr. Osher alleges that the System denied her tenure because she complained about disability and sexual orientation discrimination, and because she spoke out on issues of public concern; the System maintains it denied Dr. Osher tenure because she failed to meet the Department's requirements.¹ This Court denies the System's motion for summary judgment because a genuine issue of fact exists as to whether its proffered reason for denying Dr. Osher tenure is a pretext for unlawful retaliation.

I. STATEMENT OF FACTS

In accordance with the “conventional summary judgment praxis,” the Court recounts the facts in a light most favorable to Dr. Osher's theory of the case consistent with record support.²Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 17 (1st Cir.2002). Dr. Osher received a Masters Degree in soil science with a minor in geology, and earned her Ph.D. in environmental science policy and management at the University of California at Berkeley in 1997 Pl.'s Statement of Additional Facts ¶ 169 (Docket # 42) ( Pl.'s SMF ). After working as a research associate at the Environmental Protection Agency Dr. Osher was hired by the University in February 1999 as an Assistant Professor of Soil and Water Quality.³Pl.'s SMF ¶ 170. The position was a probationary tenure track eligible position within the Department of Applied Ecology and Environmental Sciences.⁴Def.'s Statement of Undisputed Material Facts ¶¶ 1, 19 (Docket # 25) ( Def.'s SMF ); Pl.'s Response to Def.'s Statement of Material Fact ¶ 19 (Docket # 42) ( Pl.'s Resp. to Def.'s SMF ). Her responsibilities were split between research (60%) and teaching (40%). Def.'s SMF ¶ 4; Pl.'s Resp. to Def.'s SMF ¶ 4. She was required to teach Soil and Water Quality, PSE 344, on a yearly basis. Def.'s SMF ¶ 5; Pl.'s Resp. to Def.'s SMF ¶ 5.

Pursuant to the collective bargaining agreement, the probationary period for Dr. Osher's position was six years plus up to two years of extensions. Def.'s SMF ¶ 19; Pl.'s Resp. to Def.'s SMF ¶ 19. Dr. Osher's initial appointment was from August 1, 1999 to August 1, 2000, and from August 2000 until August 2006, Dr. Osher was reappointed annually to the position of Assistant Professor. Def.'s SMF ¶¶ 24, 107; Pl.'s Resp. to Def.'s SMF ¶¶ 24, 107. On December 17, 2001, Dr. Osher submitted a request to the Peer Committee of the Department for a one-year extension of her tenure clock, and her request was granted. Def.'s SMF ¶¶ 66, 68, 69; Pl.'s Resp. to Def.'s SMF ¶¶ 66, 68, 69. On September 12, 2005, Dr. Osher requested and was granted a second extension of her probationary period. Def.'s SMF ¶¶ 100, 101; Pl.'s Resp. to DSMF ¶¶ 100, 101.

In October 2006, Dr. Osher submitted her tenure application. Def.'s SMF ¶ 108; Pl.'s Resp. to DSMF ¶ 108. On November 8, 2006, the Peer Review Committee (PRC), comprised of tenured members of the Department, recommended against granting Dr. Osher promotion to tenure by a vote of five to one. ⁵ Def.'s SMF ¶ 121; Pl.'s Resp. to SMF ¶ 121. By letter dated February 2, 2007, Robert Kennedy, the President of the University, informed Dr. Osher that he concurred with the recommendation of the Provost that she not be promoted to Associate Professor with tenure. Def.'s SMF ¶ 143; Pl.'s Resp. to Def.'s SMF ¶ 143. Dr. Osher was informed by the President of the University that she had not been promoted to Associate Professor with tenure. Id. In accordance with University procedure, she was given a terminal contract for the 2007-2008 academic year, ending August 31, 2008. Def.'s SMF ¶ 144; Pl.'s Resp. to Def.'s SMF ¶ 144.

In March 2007, Dr. Osher filed two collective bargaining grievances relative to the denial of tenure and the terminal contract. Def.'s SMF ¶ 145; Pl.'s Resp. to Def.'s SMF ¶ 145. The first grievance itemized alleged violations of the collective bargaining agreement by the PRC and PRC Chair, violations of the research evaluation provisions, and improper composition of the Provost's Promotion and Tenure Committee. Pl.'s Resp. to Def.'s SMF ¶ 145. The second grievance brought discrimination claims against the University and objected to the University's failure to attempt informal settlement of Dr. Osher's hostile workplace environment claims. Id. After receiving “right to sue” letters from the Maine Human Rights Commission (MHRC) and the United States Department of Justice, Dr. Osher initiated a Complaint against the System in the state of Maine Superior Court on January 27, 2009. The System filed its petition for removal and notice of removal on February 25, 2009.

Dr. Osher's Complaint alleges four counts of retaliation in violation of the Maine Whistleblower Protection Act, the Maine Human Rights Act, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1983. More specifically, Dr. Osher alleges that she was denied tenure in “retaliation for her complaints of discrimination against her on the basis of her disability and her sexual orientation, and her exercise of her First Amendment Rights.” Pl.'s Mem. in Opp'n to Def.'s Mot. for Summary J. at 6 (Docket # 41) ( Pl.'s Mem.).

On October 5, 2009, the System moved for summary judgment. Def.'s Motion for Summary J. (Docket # 24) ( Def.'s Mot.). Dr. Osher responded on November 11, 2009. Pl.'s Mem. The Court held oral Argument on the System's motion on March 25, 2010.

A. The Review Process for Reappointment and Tenure

The review process for Dr. Osher's tenure application was governed by the Peer Committee Guidelines for Faculty Evaluations, Promotion, and Tenure of the Department of Plant, Soil & Environmental Sciences (Guidelines) and the collective bargaining agreement between the System and the Associate Faculties of the University of Maine. Def.'s SMF ¶ 6; Pl.'s Resp. to Def.'s SMF ¶ 6. The Guidelines establish a PRC responsible for reviewing the progress of each faculty member and recommending, if appropriate, reappointment, promotion and tenure. Def.'s SMF ¶¶ 7, 9; Pl.'s Resp. to Def.'s SMF ¶¶ 7, 9. This process includes annual evaluations of each faculty member in three areas: instruction, research, and public service. Pl.'s SMF ¶ 225.

Upon completing its evaluation, the PRC makes a recommendation to the Department Chair for reappointment or non-reappointment, or promotion and tenure of the faculty member. Def.'s SMF ¶ 12; Pl.'s Resp. to SMF ¶ 12. The Department Chair performs an evaluation of the faculty member and makes a recommendation to the Dean of the applicable College. Def.'s SMF ¶ 14; Pl.'s Resp. to Def.'s SMF ¶ 14. The Dean then performs an evaluation and makes a recommendation to the University Provost, who in turn performs an evaluation and makes a recommendation to the University President. Def.'s SMF ¶¶ 15-17. Finally, the President then evaluates the faculty member and makes the final decision on reappointment or tenure. Def.'s SMF ¶ 17; Pl.'s Resp. to Def.'s SMF ¶ 17.

Although the recommendation of the PRC is not binding on the Department Chair and the College Dean, it “should be a major factor in their decision to recommend or not recommend reappointment.” Pl.'s Resp. to Def.'s SMF ¶ 14. The Guidelines provide that “[i]n order to be reappointed, a probationary faculty member should have demonstrated that progress toward satisfying the standards for tenure has been made.” Pl.'s SMF ¶ 173. Department Guidelines are not binding on administrative reviews that occur after the review of the Chair and Dean. Def.'s SMF ¶¶ 16, 17.

B. Dr. Osher's Departmental Problems

During her employment, Dr. Osher's direct supervisor was the Department Chair. Def.'s SMF ¶ 25; Pl.'s Resp. to Def.'s SMF ¶ 25. Between July 1999 and July 2002 the Department Chair was Dr. Ivan Fernandez. Def.'s SMF ¶¶ 20, 70; Pl.'s Resp. to Def.'s SMF ¶¶ 20, 70. From July 1, 2002 to June 30, 2005, Dr. Mary Susan Erich was the Department Chair. Def.'s SMF ¶ 74; Pl.'s Resp. to Def.'s SMF ¶ 74. Between July 2005 and July 2008, including the time of Dr. Osher's tenure review, Dr. Gregory Porter was the Chair of the Department. Def.'s SMF ¶ 99; Pl.'s Resp. to Def.'s SMF ¶ 99.

1. Dr. Ivan Fernandez, Department Chair from July 1999 to July 2002

Dr. Osher says that her difficulties with Dr. Fernandez began before she arrived at the University. During the interview process in February 1999, Dr. Fernandez became aware that Dr. Osher had a female partner.⁶ Pl.'s SMF ¶ 176. Dr. Fernandez initially offered to pay to bring Dr. Osher's partner to Maine for the second interview, but when Dr. Osher disclosed that her partner was female, Dr. Fernandez said he would need to get back to her. Id. The next day, Dr. Fernandez informed Dr. Osher that the travel costs for her partner would be covered. Id.

At the time of hire, Dr. Fernandez was not aware that Dr. Osher had a long term permanent back disability. Pl.'s Resp. to Def.'s SMF ¶ 30. When Dr. Osher informed Dr. Fernandez of her disability and her need for accommodation in April 1999, Dr. Fernandez stated that he would not provide the...