Whittington v. Trs. of Purdue Univ.

JANA WHITTINGTON, Plaintiff

v. TRUSTEES OF PURDUE UNIVERSITY;PURDUE UNIVERSITY CALUMET, Defendant

CIVIL NO. 2:09 cv 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

Dated: March 2, 2012

OPINION AND ORDER

This matter is before the court on the Motion for Summary Judgment [DE 38] filed by the defendants, Trustees of Purdue University and Purdue University Calumet ("Purdue"), on July 15, 2011, and the Motion to Strike [DE 47] filed by Purdue on November 9, 2011. For the reasons set forth below, the Motion for Summary Judgment is GRANTED, and the Motion to Strike is DENIED AS MOOT.

Background

In July 2001, the plaintiff, Jana Whittington, was hired as a visiting Assistant Professor in the Mechanical Engineering Technology and Supervision ("METS") Department at Purdue University Calumet. In 2002, she was promoted to an assistant professor on a tenure track. At the time she was hired, Purdue did not offer a Computer Graphics Technology Program. The program later was developed, and Whittington became the program coordinator.As the program coordinator, Whittington's immediate supervisor was Professor Mohammad Zahraee, who served as the head of the METS department. Initially, Whittington was the only full-time faculty member in the Computer Graphics Technology Program. In 2005, Michael Roller and Whittington's husband, Kim Nankivell, were hired as professors in the Computer Graphics Technology Program on a tenure track. As the program coordinator, Whittington referred student complaints to Zahraee and Dennis Korchek, the Dean of the School of Technology.

In February 2006, a student complained to Whittington that Roller offended and insulted her in front of the class by saying she worked in a whorehouse. During a meeting regarding the complaint, Zahraee told Whittington that the problem was not with the professor who called the student a whore, but with her. Whittington reported that Zahraee's attitude towards her changed after the meeting and that he and others in the department, including Roller, made demeaning and sexist comments directed toward her on a continual basis. This made it difficult for her to function and teach her classes.

Whittington was up for promotion in the fall of 2006. The Purdue policy for all promotion and tenure candidates includes review and approval from three committees before the promotion is presented to the Board of Trustees at West Lafayette for ap-proval. Until this point, Whittington never had received negative feedback from the METS Promotion and Tenure Committee or Zahraee. Whittington prepared her document for promotion and was asked to restructure it. She made the changes based on the recommendations of the committee and resubmitted it the next day. Whittington later was informed that she did not receive the promotion and tenure.

Around the same time Whittington was up for promotion, on September 15, 2006, Whittington filed a formal complaint against Zahraee with the Office of the Chancellor. The complaint alleged that Zahraee and Roller created a severe and pervasive atmosphere of sexual harassment and that she received less pay than her male counterparts. Specifically, she complained that Zahraee and Roller made inappropriate comments and verbal threats. Chancellor Howard Cohen appointed Victor Holden, the former Associate Director of Equal Employment Opportunity/Diversity, to investigate the matter. Holden interviewed the parties to the complaint, other faculty members and employees, and several students. Upon completion of his investigation, Holden concluded that Whittington was not properly compensated for release time and overloads but that the evidence did not support a finding of retaliation or gender discrimination.

Cohen reviewed the investigator's report and documentary evidence and sought the advice of the Advisory Committee on Equity. Cohen found that a preponderance of the evidence supported a finding that Whittington was not properly compensated compared to the other members of the department and instructed Zahraee to compensate Whittington for her previous work at a rate comparable to other positions within the department. Because Whittington's complaint was filed about the time the Promotion and Tenure Committee was considering Whittington's document for promotion and tenure, Cohen also instructed the second reviewing committee to conduct its review of Whittington's case for promotion and tenure de novo. With regard to Whittington's complaints of sexual harassment, Cohen determined that Whittington's charges against Zahraee and Roller did not rise to the level of harassment and could not be substantiated.

On March 19, 2 007, Cohen informed Whittington's attorney that the appropriate dollar amount to fully compensate Whitting-ton for the pay disparity was $15,000. Whittington accepted and received $15,000 in compensation for the release time and overload in accordance with the determination.

Whittington also filed a second internal formal complaint on November 2, 2006, alleging retaliation as a result of filing the formal complaint on September 15, 2006, against Zahraee. Whit-tington alleged that Zahraee made inaccurate statements to the Promotion and Tenure Committee in stating that she was going up for promotion early. Because Whittington's initial complaint was filed around the same time she was being considered for promotion, Cohen already had directed the School of Technology Committee to conduct its review de novo, without reference to the department review. Whittington moved forward with her promotion and tenure, and she was recommended for promotion and tenure by the School of Technology and University Committees. The Board of Trustees reviewed Whittington's documents and recommended that she receive promotion and tenure. Cohen found that Whittington experienced retaliation in her primary committee review, but he determined that further corrective action regarding Whittington's promotion and review was not necessary because the department committees recommendation was set aside and Whittington received promotion and tenure. Moreover, Zahraee was removed from department head and chair of the primary committee. Cohen ordered that all documents detrimental to Whittington be removed from her file.

On December 5, 2007, Whittington's attorney sent a letter to Cohen alleging that Professors Reza Kamali and Zahraee had adopted a course of action to retaliate against Whittington and Nankivell. The letter to Cohen also alleged that Kamali andZahraee intentionally inflicted emotional distress on Whittington and Nankivell. Whittington alleged that Kamali ordered her to move her office despite her protest that her new office was known by the Purdue-Calumet community to have mold. Whittington provided notice that mold could adversely affect her asthma condition. She alleged that shortly after moving into her office, she had an asthma attack caused by the mold condition. Whittington further stated that the hostile work environment at Purdue-Calumet made it difficult for Nankivell and her to do their jobs. Cohen treated the December 5, 2007 letter as a formal complaint and invoked the University's right to investigate the allegations.

On December 27, 2007, Whittington filed a charge of discrimination with the EEOC.¹ Whittington complained that she had been discriminated against based on sex and disability and that she had been retaliated against for filing a complaint. She specifically alleged that she received less pay and was required to do more work than her male counterparts. She also alleged that actions of a certain administrator caused her emotional distress.

On January 24, 2008, Cohen appointed Patricia Carlisle to investigate the matters raised in the December 5, 2007 letter from Whittington's attorney. On March 3, 2008, Carlisle con-cluded her report of the investigation. Carlisle determined that there was no preponderance of evidence to support that Zahraee and Kamali were intentionally inflicting emotional distress on Whittington. Through the course of the investigation, Carlisle found that the School of Technology was reorganized in February of 2007, resulting in all four program coordinators being eliminated. Carlisle addressed Whittington's complaint that Kamali ordered Whittington to move her office on campus to the Gyte Building, a building known to have mold in it. The previous complaints about the air quality primarily were restricted to the lower level of the building. Evidence supported air quality within industry standards. Carlisle concluded that the preponderance of the evidence supported a finding that Kamali made the decision to request relocation of the tenure and tenure track faculty for legitimate administrative reasons and that he attempted to respond in an appropriate manner to concerns expressed by Whittington. Finally, Carlisle addressed the final allegation that repeated actions of Kamali and Zahraee to retaliate against Whittington and Nankivell caused emotional distress. Carlisle determined that the evidence did not support an intent to inflict emotional distress or retaliation on the part of Zahraee or Kamali.

On October 22, 2008, Whittington received her right to sue letter from the U.S. Department of Justice — Civil Rights Division. Whittington filed her complaint on January 16, 2009, alleging discrimination in pay, sexual harassment, creation of a hostile working environment, and retaliation. Purdue filed a motion for summary judgment on July 15, 2011. Whittington responded on September 26, 2011, and Purdue now moves to strike certain portions of the documents Whittington submitted in support of her response as inadmissible.

Discussion

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper only if it is demonstrated that "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23...