Petitions for Certification Denied.
e-disclosure in the MCH Department voted unanimously against recommending reappointment, promotion and tenure for Dr. Weathers. (Kotch Aff. Ex. 16 (Doc. 67-4) 1, July 15, 2010.) Because the full professors did not have a complete promotion package to review, the full professors reviewed a September 7, 2004, memorandum entitled "Review of Reappointment in Rank of Andrea Weathers" and a list of manuscripts, grants and courses taught that were provided by Dr. Weathers to Dr. Peterson in connection with her June 20, 2007, annual review. (Peterson Aff. (Doc. 66) ¶ 23, July 15, 2010;
see also Kotch Aff. Ex. 16 (Doc. 67-4) 1, July 15, 2010.) When the full professors voted on Dr. Weathers' promotion and tenure, Dr. Weathers had six (6) papers either in publication or in press. (Kotch Aff. Ex. 16 (Doc. 67-4) 2, July 15, 2010.) Of those six (6) papers, "four [were] based on Dr. Weathers' dissertation which she completed prior to her arriving at UNC."
(Id.)
According to the affidavits submitted by Defendants, the Full Professors Committee in 2007 consisted of Dr. Kotch, Dr. Martin, and Dr. Foster. (Kotch Aff. (Doc. 67) ¶ 12, July 15, 2010; Martin Aff. (Doc. 68) ¶ 8, July 15, 2010; Foster Aff. (Doc. 69) ¶ 3, July 14, 2010.)
In a letter to Dr. Weathers dated November 19, 2007, Dr. Peterson informed Dr. Weathers that she would not be reappointed when her current probationary term expired on November 30, 2008. (Peterson Aff. Ex. 17 (Doc. 66-12) 1, July 15, 2010.) Dr. Peterson also informed Dr. Weathers that pursuant to the Trustee Policies she had the right to request a private conference with him to discuss the reasons for her nonreappointment. (Id. at 2.) Dr. Weathers met with Dr. Peterson in December 2007 and Dean Rimer in January 2008. (Ver. 2d Am. Compl. (Doc. 29) ¶ 69.) On February 28, 2008, the Faculty Hearings Committee heard Dr. Weathers' appeal of her nonreappointment. (Id.) The Faculty Hearings Committee sent then-Chancellor James Moeser (hereinafter "Chancellor Moeser") a letter on March 25, 2008, containing its findings and recommendations to uphold Dr. Weathers' nonreappointment. (Id.) On May 23, 2008, Chancellor Moeser notified Dr. Weathers by letter of his decision to approve the recommendations of the Faculty Hearings Committee and to uphold the MCH Department's decision not to reappoint her. (Id.) Dr. Weathers appealed to the final reviewing body for reappointment decisions at UNC, the Board of Governors, on June 3, 2008. (Id.) On January 9, 2009, the Board of Governors issued its decision to uphold Chancellor Moeser's decision not to reappoint Dr. Weathers or to grant her tenure. (Id.) Dr. Weathers filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on April 8, 2008, and received her Dismissal and Notice of Rights Letter on December 23, 2008. (Id. ¶ 112-13.)
II. ANALYSIS
A. Legal Standard for Summary Judgment
Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates that no genuine issue of material facts exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of initially demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party has met that burden, then the nonmoving party must persuade the court that a genuine issue remains for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A fact is "material" if its truth or falsity might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 248. A dispute regarding a material fact is "genuine" if sufficient evidence exists such that a reasonable jury could resolve the dispute in favor of the nonmoving party. Id. "Mere allegations" in support of a party's pleadings, without "any significant probative evidence" to support those allegations, do not provide sufficient evidence to allow a reasonable jury to resolve a dispute in favor of that party. Id. at 248-49 (internal quotation mark omitted); see also Brown v. Sears Auto. Ctr., 222 F. Supp. 2d 757, 761 (M.D.N.C. 2002) ("[T]he non-moving party cannot rely solely on unsupported assertions to demonstrate that a genuine issue of material fact exists."). Put another way, simply showing "some metaphysical doubt as to the material facts" is not sufficient to establish a genuine dispute. Matsushita, 475 U.S. at 586.
In considering whether a genuine issue of material fact exists, the court must be careful not to weigh the evidence or make credibility determinations. Anderson, 477 U.S. at 255. Instead, the court must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in favor of that party. Id. at 255. In particular, at the summary judgment stage, the nonmoving party is entitled "to have the credibility of [her] evidence as forecast assumed, [her] version of all that is in dispute accepted, all internal conflicts in it resolved favorably to [her], the most favorable of possible alternative inferences from it drawn in [her] behalf; and finally, to be given the benefit of all favorable legal theories invoked by the evidence so considered." Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
When deciding whether to grant summary judgment in an employment discrimination case, "courts must take special care . . . because motive often is the critical issue." Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987). However, the fact that motive is at issue does not mean that summary judgment is never appropriate, since a moving party may still be able to show that no genuine issue of material fact exists. Ballinger, 815 F.2d at 1005.
B. Title VII Claim Against Defendant UNC
Because Dr. Weathers has proffered no direct evidence of discrimination, her Title VII discrimination claim is asserted under the test set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff must first present evidence of a prima facie case of discrimination.Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If a plaintiff meets the burden of presenting a prima facie case, the defendant-employer bears the burden to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 253 (quoting McDonnell Douglas, 411 U.S. at 802). At this second step, the defendant's burden is a burden of production, rather than a burden of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) ("[A]lthough the McDonnell Douglas presumption shifts the burden of production to the defendant, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.") (italics in original). Finally, if the employer carries his burden of production, "the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253.
At a conference before this court on October 12, 2010, Dr. Weathers confirmed that she is proceeding under the McDonnell Douglas framework.
To survive a motion for summary judgment under the McDonnell Douglas framework, the plaintiff must develop some evidence based upon which a juror could reasonably find that discrimination motivated the challenged employment action. Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004). If the plaintiff fails to prove a prima facie case of discrimination or fails to raise a genuine factual dispute concerning the employer's proffered explanation for the alleged discriminatory employment action, the defendant is entitled to summary judgment. Henson v. Liggett Grp., Inc., 61 F.3d 270, 274 (4th Cir. 1995).
1. Plaintiff's Prima Facie Case
Title VII makes it unlawful for employers to "to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1) (2006). Because Dr. Weathers alleges discrimination in the context of promotion and tenure, she must present evidence that: (1) she is a member of a protected group, (2) she applied for promotion and tenure, (3) she was qualified for promotion and tenure, and (4) she was rejected under circumstances giving rise to an inference of unlawful discrimination. See Alvarado v. Bd. of Trs. Of Montgomery Cmty. Coll., 928 F.2d 118, 121 (4th Cir. 1991) (articulating a modified McDonnell Douglas test for the prima facie case for discrimination to be applied in failure to promote cases); Rowe v. N.C. Agric. and Tech. State Univ., 630 F. Supp. 2d 601, 607 (M.D.N.C. 2009) (applying the modified test set out in Alvarado to the promotion and tenure context).
It is undisputed that, as an African-American individual, Dr. Weathers is a member of a protected class. McDougal-Wilson v. Goodyear Tire and Rubber Co., 427 F. Supp. 2d 595, 606 (E.D.N.C. 2006). Nevertheless, for the reasons set forth below, Dr. Weathers has failed to establish the remaining three (3) elements of a prima facie case as set out in Alvarado, supra.
a. Application for Promotion and Tenure
The first element of the prima facie case requires that Dr. Weathers present evidence from which a jury could find that she applied for promotion and tenure. Alvarado, 928 F.2d at 121; see also, Rowe, 630 F. Supp. 2d at 607. The record is clear that Dr. Weathers did not submit a promotion package until five (5) months after the deadline for the submission of her promotion package had passed. (Ver. 2d Am. Compl. (Doc. 29) ¶ 59; Weathers Dep. (Doc. 75-8) 232:1-238:16.) That deadline was established in accordance with the Trustee Policies, which require that the University notify a candidate for promotion and tenure of its decision about whether to reappoint the candidate no less than twelve (12) months before the end of the candidate's probationary term. (Peterson Aff. Ex. 1 (Doc. 66-2) 3, July 15, 2010.) Dr. Peterson's testimony, that Dr. Weathers' late submission did not allow sufficient time to comply with the University policy, is not disputed. (Peterson Aff. (Doc. 66) ¶ 21, July 15, 2010.)
In an attempt to prove the application element of her prima facie case, Dr. Weathers' has invoked the futile gesture doctrine set forth in Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324, 365-67 (1977). Under the futile gesture doctrine, a plaintiff who has failed to apply for a job may still be entitled to relief under Title VII if she can establish that her failure to apply resulted from "[her] unwillingness to engage in the futile gesture" of submitting an application, due to the employer's well-known "policy of discrimination." Id. at 365-66; see also Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1451 (4th Cir. 1990.) ("[T]he failure to apply for a job does not preclude recovery if a claimant can demonstrate that [she] would have applied but for accurate knowledge of an employer's discrimination and that [she] would have been discriminatorily rejected had [she] actually applied."). The Supreme Court inTeamsters noted that an employee who relies on the futile gesture doctrine in order to prove his case must carry the "not always easy burden of proving that he would have applied for the job had it not been for [the employer's well-known practices of discrimination]." Teamsters, 431 U.S. at 367-68.
Unlike the plaintiffs in Teamsters and Pinchback, Dr. Weathers has presented no evidence that her failure to apply resulted from her knowledge of a "consistently enforced discriminatory policy" by Defendants. Teamsters, 431 U.S. at 365. The Teamsters court gave as an example of a consistently enforced discriminatory policy an employer who "announce[s] his policy of discrimination by a sign reading `Whites Only' on the hiring-office door" or who communicates the same message "more subtly" to potential applicants "by his consistent discriminatory treatment of actual applicants, by the manner in which he publicizes vacancies, his recruitment techniques, his responses to casual or tentative inquiries, and even by the racial and ethnic composition of that part of his work force." Id.
In Pinchback, the plaintiff was an African-American female and a prospective purchaser of a home in the defendant's housing development. 907 F.2d at 1449. When the plaintiff called to inquire about viewing the property, the real estate agent told her that "the community in which the home was located did not permit blacks to live there." Id. The Fourth Circuit affirmed the district court's finding that the defendant had a "racially discriminatory policy" and that the plaintiff's failure to make an offer for the property stemmed from her "unwilling[ness] to engage in [a] futile gesture." Id. at 1450, 1452. See also U.S. v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989) (holding that the plaintiff successfully proved a Title VII violation where the defendant Sheriff admitted on four (4) separate occasions "that he had a policy of discriminating against women when considering them for deputy positions").
Dr. Weathers has presented no evidence to suggest that UNC, or the faculty of the MCH Department, had a policy of denying tenure to African Americans. Although Dr. Weathers alleges in her complaint that Defendants engaged in an "ongoing pattern or practice of race discrimination" (Ver. 2d Am. Compl. (Doc. 29) ¶ 2), such "mere allegations" without, "any significant probative evidence" to support them do not entitle Dr. Weathers to overcome summary judgment. Anderson, 477 U.S. at 248-49 (internal quotation mark omitted). In contrast, Defendants have produced extensive evidence to show that Dr. Peterson, the MCH Department, the School of Public Health, and the University took substantial efforts to help Dr. Weathers raise the quantity and caliber of her research contributions to the level necessary for obtaining tenure. (See Peterson Aff. (Doc. 66) ¶ 7, 9, July 15, 2010; Rimer Aff. Ex. 8 (Doc. 65-4) D00000366-67, July 15, 2010; Foster Aff. (Doc. 69) ¶ 7, July 14, 2010.) Similarly, the record reflects repeated attempts by Dr. Peterson and Ms. Cotcamp to assist Dr. Weathers with the successful completion of her application. (Cotcamp Dep. Ex. 43 (Doc. 72-1); Peterson Aff. Ex. 13 (Doc. 66-9), July 15, 2010.) Rather than implicating the futile gesture doctrine, this evidence simply reflects a refusal by Dr. Weathers to cooperate with necessary steps to meet the requirements of the University and the rules contained in the APT Manual.
This court finds that the "racially-based comments" alleged by Dr. Weathers do not reveal evidence of discrimination, or a policy of discrimination, as more fully addressed in Part II.B.3infra.
See supra note 4.
Dr. Weathers argues that by notifying her that her refusal to timely provide a list of references would amount to "a decision to stop [the Department's] collective efforts" to further her candidacy for promotion and tenure, Dr. Peterson engaged in "differential treatment directed to [her], a racial minority." (Peterson Aff. Ex. 13 (66-9) 1, July 15, 2010; Weathers Aff. (Doc. 2) ¶ 10.) However, Dr. Weathers has not presented any evidence that Dr. Peterson had ever accepted the promotion package of any candidate, minority or otherwise, who failed to submit a list of references or who submitted their promotion package five (5) months after the deadline. During her deposition, Ms. Cotcamp stated that she reminded two (2) other tenure candidates of the need to submit a list of references, and those candidates responded to her with their lists of references within a week of her first reminder. (Cotcamp Dep. (Doc. 72-1) 81:9-12.) Dr. Weathers, on the other hand, persisted in her intent to submit her promotion package on May 1, 2007, without the letters of reference, despite Ms. Cotcamp's notice and Dr. Peterson's warnings. (Peterson Aff. Ex. 13 (Doc. 66-9) 1-3, July 15, 2010.)
Although her submission of a promotion package on May 1, 2007, may have been futile due to her own refusal to timely provide a list of references to Dr. Peterson, the evidence does not support a finding that any futility arose from a discriminatory practice by Defendants. On this record, Dr. Weathers has failed to present a genuine issue of material fact concerning her failure to apply for tenure. Accordingly, this court finds that Dr. Weathers did not submit an application for tenure in accordance with University requirements.
b. Qualification
Even assuming, arguendo, that Dr. Weathers applied for tenure or that her failure to apply for tenure resulted from her unwillingness to engage in a futile gesture, Dr. Weathers has not presented evidence that she was qualified for promotion and tenure. Alvarado, 928 F.2d at 121; see also, Rowe, 630 F. Supp. 2d at 607. Because "professorial appointments necessarily involve subjective and scholarly judgments," district courts are not to "substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure." Jiminez v. Mary Washington Coll., 57 F.3d 369, 376-77 (4th Cir. 1995) (internal quotation marks and citation omitted). Unless a university's tenure decisions "can be shown to have been used as the mechanism to obscure discrimination, they must be left for evaluation by the professional." Id. (internal citation omitted).
According to the Trustee Policies, conferral of academic tenure "requires an assessment of institutional needs and resources and evidence of service to the academic community, potential for future contribution, commitment to the welfare of the University, and demonstrated professional competence, including consideration of commitment to effective teaching, research or public service." (Peterson Aff. Ex. 1 (Doc. 66-2) 2, July 15, 2010.) The APT manual sets forth the three (3) major elements by which candidates for reappointment, promotion and tenure are judged:
(1) Research, or the creation of new knowledge pertinent to public health;
(2) teaching, or the dissemination of knowledge to students, health professionals and the public; and
(3) practice, or the advancement of the innovative application of knowledge (and evaluation of the impact of this application) to enhance the
health of the public. (Peterson Aff. Ex. 2 (Doc. 66-3) 10, July 15, 2010.)
Upon their review of Dr. Weathers' qualifications for promotion and tenure, the full professors concluded that Dr. Weathers "[did] not satisfy minimum expectations for an assistant professor after 51/2 to 6 years of service in either demonstrated professional competence or potential for future contributions." (Kotch Aff. Ex. 16 (Doc. 67-4) 2, July 15, 2010.) The full professors noted that Dr. Weathers' "total research productivity . . . [was] inadequate." (Id.) Specifically, the full professors noted that Dr. Weathers had only published six (6) papers during her six (6) years at UNC, four (4) of which were "based on Dr. Weathers' dissertation which she completed prior to her arriving at UNC." (Id.) Dr. Weathers had only published three (3) articles since her reappointment in 2004. (Rimer Aff. (Doc. 65) ¶ 17, July 15, 2010.) Moreover, Dr. Weathers had only secured one (1) externally funded grant on which she served as the principal investigator, and "[that] level of funding was not indicative of any future potential to support a minimum of 50% of her salary which tenured faculty are expected to do." (Kotch Aff. Ex. 16 (Doc. 67-4) 2, July 15, 2010.) In response to the full professors' recommendation, Dr. Peterson also declined to recommend the reappointment, promotion, and tenure of Dr. Weathers based, in part, on her scant publication record. (Peterson Aff. (Doc. 66) ¶ 29-30, July 15, 2010.)
The record reflects that the junior faculty members who were promoted to tenure in the School of Public Health at UNC, during the decade preceding Dr. Weathers' nonreappointment, had substantially more publications than Dr. Weathers at the time they were promoted. (Rimer Aff. (Doc. 65) ¶ 19, July 15, 2010.) Dr. Weathers does not dispute Dean Rimer's account of the publication statistics for the School of Public Health faculty as a whole, wherein the median number of publications authored by junior faculty members who were promoted and tenured from September 1, 1999, until December 1, 2007, ranged from twenty (20) in Nutrition to sixty-three (63) in Epidemiology. (Id.) The mean during the same time period ranged from twenty-seven (27) in Nutrition to fifty-nine and eight-tenths (59.8) in Epidemiology. (Id.) Even the faculty member with the fewest publications had twice as many publications as Dr. Weathers at the time he was promoted, and he was also listed as the Principal Investigator on twelve (12) grants. (Id.)
Dr. Weathers presents no evidence, other than her own conclusory allegations, to demonstrate how she possessed the qualifications necessary for obtaining tenure at UNC. Dr. Weathers' "conclusory, personal belief that she meets all of the requirements" for tenure set forth by UNC "cannot create a genuine issue of material fact for trial. Rowe, 630 F. Supp. 2d at 609 (citing Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)). See also Mackey, 360 F.3d at 469-70 ("A plaintiff's own self-serving opinions, absent anything more, are insufficient to establish a prima facie case of discrimination."). In Rowe, another court in the Middle District of North Carolina granted summary judgment for the defendant university, in part, because the plaintiff had failed to establish that she was qualified for promotion and tenure. 630 F. Supp. 2d at 609. In particular, the plaintiff in Rowe lacked the research and publication record necessary for obtaining tenure.Id.
The Seventh Circuit Court of Appeals granted summary judgment in favor of the defendant university where the plaintiff failed to prove that "she was meeting [the university's] legitimate requirements regarding research and publishing," when she only published five (5) peer-reviewed publications during her six (6) years at the university. Lim v. Trs. of Ind. Univ., 297 F.3d 575, 581 (7th Cir. 2002). Like Dr. Weathers, the plaintiff in Lim "was warned that she was not meeting the publication expectations established by the Department of Anatomy." Id. Nevertheless, the plaintiff failed to increase her rate of publication even after she received criticism at her annual review for not publishing at an acceptable rate. Id.
Similar to the plaintiff in Lim, Dr. Weathers had six (6) articles that had either been published or accepted in refereed journals as of May 1, 2007. (Weathers Dep. (Doc. 71) 46:14-47:1.) The record reflects, despite being told by Dr. Beukens, Dr. Peterson, and the Mentoring Committee that she should publish several articles per year in order to be eligible for tenure, Dr. Weathers did not increase her rate of publication after she was reappointed to a second probationary term. (Buekens Dep. Ex. 44 (Doc. 70-2) 1; Peterson Aff. Ex. 7 (Doc. 66-7) 2, July 15, 2010; Rimer Aff. Ex. 8 (Doc. 65-4) D00000365, July 15, 2010.) The record reflects a failure by Dr. Weathers to publish anything during the three (3) years leading up to the decision to deny her reappointment. (Weathers Aff. Ex. A (Doc. 2-2) 2-3.)
To explain her scarce publication record, Dr. Weathers points to the unwillingness of faculty members in the MCH Department to collaborate with her. (Weathers Aff. (Doc. 2) ¶ 7(c)) ("Not one faculty member ever . . . invited Plaintiff to collaborate with him or her on publications.") However, Dr. Weathers' allegation, which is unsupported by "any significant probative evidence," is belied by the record. Anderson, 477 U.S. at 249 (internal quotation mark omitted). As previously set forth herein, Defendants have produced evidence to show that Dr. Peterson and others on the faculty offered to introduce Dr. Weathers to individuals with whom she could possibly collaborate, and those invitations were for the most part refused by Dr. Weathers. (Peterson Aff. (Doc. 66) ¶ 9, July 15, 2010; Rimer Aff. Ex. 8 (Doc. 65-4) D00000366-67, July 15, 2010; Foster Aff. (Doc. 69) ¶ 7, July 14, 2010.)
See supra note 4.
Dr. Weathers argues in her brief that Dr. Kilpatrick said that "senior faculty will put junior faculty's names on papers and collaborate to bring the junior faculty's careers along," but that no one offered to do the same for her. (Mem. Opp. Defs.' Mot. Summ. J. (Doc. 72) 7.) Dr. Weathers misstates what Dr. Kilpatrick said during his deposition; Dr. Kilpatrick in fact stated that senior faculty members "are eager to work with junior faculty and to put the junior faculty's [sic] person's name first on publications if it helps that person." (Kilpatrick Dep. (Doc. 72-3) 97:14-16 (emphasis added)). By omitting the word "first" from her citation of Dr. Kilpatrick's testimony, Dr. Weathers insinuates that senior faculty add the names of junior faculty members to their publications regardless of whether that faculty member contributed to the work. Dean Rimer clarified in her affidavit that "[i]t would not be reasonable or even consistent with current academic publishing practices and ethical standards to put someone on a publication who is not intimately involved with a particular project." (Rimer Aff. (Doc. 65) ¶ 14, July 15, 2010.)
Dr. Weathers' conclusory attempts to blame her scarce publication record on the other faculty members in the MCH Department do not create a genuine issue of material fact for trial. In the words of the Lim court, "[b]y even the most permissive of accounts," Dr. Weathers "did not meet the research and publishing criteria established by her Department. Accordingly, she has failed to establish a prima facie case of employment discrimination." Lim, 297 F.3d at 581.
c. Whether Denial of Tenure and Promotion Occurred Under Circumstances Giving Rise to an Inference of Discrimination
Assuming for the sake of argument that Dr. Weathers applied and was qualified for promotion and tenure, she has nevertheless failed to establish that her application was denied under circumstances giving rise to an inference of unlawful discrimination. Alvarado, 928 F.2d at 121; see also, Rowe, 630 F. Supp. 2d at 607. An inference of discrimination may be warranted where a university grants the tenure application of a similarly or less qualified applicant who is not a member of the plaintiff's protected class. See Rowe, 630 F. Supp. 2d at 610;see also Smith v. Univ. of N.C., 632 F.2d 316, 341 (4th Cir. 1980) (explaining that the fourth element of the McDonnell Douglas prima facie case "can be satisfied in cases of faculty promotion by requiring the plaintiff to show that the college had promoted other faculty members with qualifications similar to those of the Title VII plaintiff to the desired faculty rank at approximately the same time").
Dr. Weathers has not presented any evidence that the School of Public Health has ever granted tenure to a non-African-American applicant whose qualifications were commensurate with or inferior to Dr. Weathers' qualifications. In her affidavit, Dr. Weathers acknowledges that her publication record evidences a "deficiency in co-authored publications." (Weathers Aff. (Doc. 2) ¶ 9.)
It appears to this court that most of the peer-reviewed publications at issue in this case, even many of those for which Dr. Weathers was lead author, are, in fact, "co-authored publications." However, Dr. Weathers seems to adopt the term "co-authored publications" to refer to publications for which a tenure candidate is not the lead author (i.e. publications in which the tenure candidate's name appears second, third, or fourth, etc. on the byline). This court will use the term "co-authored publications" consistently with Dr. Weathers' use thereof.
Dr. Weathers contends that while the quantity of her co-authored publications was fewer than that of non-African-American junior faculty on the tenure track, the number of lead author publications she has produced is "commensurate with those of non-African-American junior faculty members on the tenure track." (Id.) However, Dr. Weathers has presented no evidence, other than her own "naked opinion," to support this contention. See generally Goldberg v. B. Green and Co., 836 F.2d 845, 848 (4th Cir. 1988) (noting that the plaintiff's "own naked opinion, without more, is not enough to establish a prima facie case of age discrimination").
From the record, it appears that the terms "lead author" and "first author" are used interchangeably to refer to the individual whose name appears first on the byline of a publication.
In fact, the record demonstrates that all three (3) of the junior faculty members who were promoted to Associate Professor in the MCH Department during the eleven (11) years preceding Dr. Weathers' denial of tenure had more first-authored publications than Dr. Weathers. (Peterson Aff. (Doc. 66) ¶ 31-34, July 15, 2010.) When she was granted tenure in 2004, Dr. Carolyn Halpern (hereinafter "Dr. Halpern") had eighteen (18) peer-reviewed journal articles and was the lead author on thirteen (13) of them. (Id. ¶ 32; see also Peterson Aff. Ex. 21 (Doc. 66-16), July 15, 2010.) Dr. Anna Maria Siega-Riz (hereinafter "Dr. Siega-Riz") had thirty-seven (37) peer-reviewed articles when she was promoted and tenured in 2003, and Dr. Siega-Riz was the lead author on thirteen (13) of those articles. (Peterson Aff. (Doc. 66) ¶ 33, July 15, 2010; see also Peterson Aff. Ex. 20 (Doc. 66-15), July 15, 2010.) Finally, Dr. Trude Bennett had twenty-one (21) peer-reviewed articles at the time of her promotion and tenure in 1999, and she was the first author on eleven (11) of those articles. (Id. at ¶ 34; see also Peterson Aff. Ex. 19A (Doc. 66-13), July 15, 2010; Peterson Aff. Ex. 19B (Doc. 66-14), July 15, 2010.)
This court recognizes that the publication statistics given by Dr. Peterson for all three candidates (Dr. Halpern, Dr. Siega-Riz, and Dr. Bennett) include some publications that were written before these candidates began their employment with UNC; however, Dr. Weathers has not proffered any evidence to suggest that it was improper for Defendants to consider the candidates' pre-UNC publication records for the purposes of granting reappointment, promotion, and tenure. Moreover, Dr. Weathers has not presented any evidence that she published any articles prior to her arrival at UNC that Defendants failed to considered as a part of their decision not to reappoint her.
The number of articles published by each of these three (3) MCH professors at the time of their tenure is on par with the mean and median number of articles published by professors who received tenure in the School of Public Health as a whole. (Rimer Aff. (Doc. 65) ¶ 19, July 15, 2010.) None of the individuals who received tenure in the decade preceding Dr. Weathers' denial of tenure were similarly situated to Dr. Weathers. Therefore, Dr. Weathers has failed to establish that she was denied promotion and tenure under circumstances leading to an inference of unlawful discrimination.
To the extent that any of the "racially-based comments" alleged by Dr. Weathers could be construed to support an inference of unlawful discrimination, those comments are addressed in Part II.B.3 infra.
Because Dr. Weathers "has not presented evidence, other than her own unsubstantiated assertions," that she applied for tenure, "that she was . . . qualified for promotion and tenure or that she was rejected under circumstances giving rise to an inference of unlawful discrimination," Dr. Weathers has failed to present a prima facie case of discrimination. Rowe, 630 F. Supp. 2d at 610.
2. Defendants' Legitimate and Non-Discriminatory Reasons for Denying Tenure
Dr. Weathers' Title VII claim also fails because Defendants have articulated a "legitimate, nondiscriminatory reason" for their refusal to grant Dr. Weathers tenure. Burdine, 450 U.S. at 253 (internal quotation marks and omitted). Unlike Dr. Weathers' burden in proving her prima facie case, Defendants' burden in theMcDonnell Douglas burden-shifting test is merely a burden of production, rather than persuasion. St. Mary's Honor Ctr., 509 U.S. at 507.
After reviewing Dr. Weathers' qualifications, the full professors and Dr. Peterson concluded that Dr. Weathers did not meet the requirements for promotion and tenure, in large part because of her inadequate research productivity and her failure to comply with the MCH Department deadline for the submission of a promotion package. (Kotch Aff. Ex. 16 (Doc. 67-4) 2, July 15, 2010; Peterson Aff. (Doc. 66) ¶ 28-30, July 15, 2010.)
"It has been said that `publish or perish' is the watchword of academia, and courts have held that a lack of publication during a professor's term of employment at a school to be a legitimate, non-discriminatory reason for denial of tenure." Rowe, 630 F. Supp. 2d at 611 (citing Rosado v. Va. Commonwealth Univ., 927 F. Supp. 917, 937 (E.D.Va. 1996) (finding that the defendant employer articulated a legitimate, non-discriminatory reason where "[t]he comments of the members of the promotion and tenure committees reflect a reasoned decision not to promote or grant tenure based on lack of a constant and satisfactory record of research and publication")). By producing evidence of Dr. Weathers' limited number of publications, in addition to evidence of Dr. Weathers' limited work as a professor and an advisor, Defendants have produced specific evidence of a legitimate, non-discriminatory reason for denying Dr. Weathers reappointment, promotion, and tenure.
3. Pretext
Under the McDonnell Douglas burden-shifting test, when Defendants articulate a legitimate, non-discriminatory reason for their decision to deny Dr. Weathers' promotion and tenure, Dr. Weathers then must prove by a preponderance of the evidence that the reason proffered by Defendants was pretextual. Burdine, 450 U.S. at 253. To satisfy the pretext prong of McDonnell Douglas, the plaintiff must show "both that the reason was false, and that discrimination was the real reason" for the denial of tenure.Jiminez, 57 F.3d at 378 (internal quotation marks and citations omitted). The Eighth Circuit has noted that "the plaintiff's evidence of pretext must be of such strength and quality as to permit a reasonable finding that the denial of tenure was obviously unsupported." Oamhiyah v. Iowa State Univ. of Sci. and Tech., 566 F.3d 733, 747 (8th Cir. 2009) (internal quotation mark omitted). Indeed, "[t]he showing of pretext necessary to survive summary judgment requires more than merely discrediting an employer's asserted reasoning for terminating an employee. A plaintiff must also demonstrate that the circumstances permit a reasonable inference of discriminatory animus." Id. (quotingRoeben v. BG Excelsior Ltd. P'ship, 545 F.3d 639, 643 (8th Cir. 2008)).
Dr. Weathers has provided no evidence to contradict UNC's conclusion that her research productivity was substantially inferior to other junior faculty who were granted promotion and tenure during the years preceding the denial of her candidacy.See Rowe, 630 F. Supp. 2d at 611. Moreover, Dr. Weathers has failed to present evidence that her race was a factor in the denial of her promotion and tenure. Although Dr. Weathers has alleged that she "endured . . . numerous racially-based comments" during her time at UNC (Weathers Aff. (Doc. 2) ¶ 6), these comments are insufficient to permit a reasonable inference of discriminatory animus or to support a finding that the denial of her tenure was "obviously unsupported." Oamhiyah, 566 F.3d at 747. See Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999) ("[T]o prove discriminatory animus, the derogatory remark cannot be stray or isolated, and `[u]nless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of [discrimination].'" (quoting McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir. 1991)), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
None of the racially-based comments allegedly made by Defendants and other UNC faculty members related to the employment decision at issue in this case, i.e. the decision to deny Dr. Weathers reappointment, promotion and tenure. With the exception of Dr. Foster's email series, which occurred in March 2007, all of the comments were made at least a year before the decision to deny Dr. Weathers tenure. (Weathers Aff. (Doc. 2) ¶ 6.) In fact, most of the comments were made in 2005 or earlier.(Id. ¶ 6(a)-(h), (k).) Many of the comments, including all of the comments allegedly made by Dr. Kotch, were made before Dr. Weathers was successfully reappointed to a second probationary term in September 2004. (Id. at ¶ 6(a)-(d)). See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir. 1994) (finding that a discriminatory statement which was made over two years before the challenged employment action was too remote to be used as evidence of discrimination); Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1026 (6th Cir. 1993) (finding that because discriminatory statements were made approximately a year before the challenged employment action, they were too remote "to have influenced the termination decision").
Moreover, many of the comments that Dr. Weathers considers to be "racially-based," in fact have nothing to do with her race; instead, they reflect a personal conflict between Dr. Weathers and the speaker. In Hawkins v. PepsiCo, Inc., 203 F.3d 274, 276 (4th Cir. 2000), the Fourth Circuit affirmed the district court's dismissal of the plaintiff's claim due to her failure to show "[anything] more than a routine difference of opinion and personality conflict with her supervisor." The Hawkins court refused to "transmute such ordinary workplace disagreements between individuals of different races into actionable race discrimination." Id. For example, the comments made by Dr. Kotch and Dr. Foster via email to Dr. Weathers in May 2004 and March 2007, like many of the other communications, are the type of "routine difference of opinion and personality conflict" that theHawkins court found was insufficient to prove actionable race discrimination. Id.; (Weathers Aff. (Doc. 2) ¶ 6(d), (1).) Never once in those emails, whether explicitly or implicitly, did Dr. Kotch or Dr. Foster mention anything remotely touching on Dr. Weathers' race. (Weathers Aff. (Doc. 2) ¶ 6(d), (1).) Instead, their criticism stemmed from their disapproval of the way that. Dr. Weathers handled problems within the MCH Department. (Id.) Therefore, the discriminatory comments alleged by Dr. Weathers fall short of the "strength and quality" of evidence required to show that Defendants' legitimate and non-discriminatory reasons for denying tenure were "mere pretext." Oamhiyah, 566 F.3d at 746-47. For the foregoing reasons, Dr. Weathers has failed to prove that Defendants' reasons are mere pretext. Therefore, because there are no genuine issues of material fact, summary judgment is granted for Defendant UNC on Count Two of Dr. Weather's complaint.
C. Section 1981 and 1983 Claims Against Defendants Peterson, Kotch, Rimer, Foster, and Martin in their Individual and Official Capacities
In addition to her Title VII claim against Defendant UNC, Count One of Dr. Weathers' complaint alleges that Defendants Peterson, Kotch, Rimer, Foster, and Martin are liable for employment discrimination, in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 1983. The United States Supreme Court has acknowledged that theMcDonnell Douglas framework "is fully applicable to racial-discrimination-in-employment claims" under both 42 U.S.C § 1983 and 42 U.S.C. § 1981. St. Mary's Honor Ctr., 509 U.S. at 506 n. 1; see also Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (applying McDonnell Douglas framework to § 1981 claims). Therefore, for the reasons set forth in Part II.B above, the individual Defendants are also entitled to summary judgment on Count One of Dr. Weathers' Complaint.
III. CONCLUSION
For the reasons set forth herein, Defendant's motion for summary judgment (Doc. 63) is GRANTED. A judgment in accordance with this opinion will be filed contemporaneously herewith.
This the 18th day of November 2010.