This page hosted by
Get your own Free Home Page
On July 2, 1992, Randy Barbara Kaplan, an Assistant Professor of Theatre and Dance at the State University of New York at Geneseo, was terminated from her teaching position with the university. In April 1993, with the full support of her union, United University Professions, she filed a gender discrimination lawsuit against SUNY-Geneseo and Professor Terry Browne, formerly the Chair of the Department of Theatre and Dance. After five and a half years, her case was tried in Federal Court in Rochester, NY, from September 8 through September 11, 1998. Judge Michael Telesca ruled in her favor.
The document that follows is Judge Telesca's ruling in its entirety. After the ruling, an article on the lawsuit from the Geneseo chapter's United University Professions newsletter is appended.
Matthew J. Fusco of the law firm of Chamberlain, D'Amanda, Oppenheimer and Greenfield in Rochester was Dr. Kaplan's counsel.
Matthew J. Fusco
STATE UNIVERSITY OF NEW YORK AT
GENESEO, CAROL HARTER,
as President of the State University of
New York at Geneseo,
and TERRY BROWNE, Individually
and as agent of the STATE UNIVERSITY
OF NEW YORK AT GENESEO,
Plaintiff Randy Kaplan originally brought this action pursuant to Title VII of the Civil Rights Act of 1964 and of the New York State Human Rights Law, (codified as § 296 of the New York Executive Law), claiming that defendants the State University of New York at Geneseo ("SUNY Geneseo"), Carol Harter ("Harter"), and Terry Browne ("Browne), discriminated against her with regard to her employment at Geneseo. By Order dated August 27, 1998, this Court dismissed the Title VII and Title IX claims as to defendants Carol Harter and Terry Browne. For determination are plaintiff's claims under Title VII, Title IX, and New York Human Rights law against SUNY Geneseo and her claim of tortious interference based on New York State law against Terry Browne.
Plaintiff, formerly a professor of Theatre at Geneseo, claims that she was denied renewal of her teaching contract because she is a woman. The case proceeded to bench trial on September 8, 1998 and concluded on September 11, 1998. In addition to oral summations, both parties filed supplemental written summations on September 15, 1998. The following decision constitutes my findings of fact and conclusions of law as required by Rule 52 (a) of the Federal Rules of Civil Procedure.
Randy Kaplan was hired as an Assistant Professor of Theatre and Dance at SUNY Geneseo in the Fall of 1987. She was given a two-year contract with the understanding that it could be renewed, and that if renewed for a total of five additional years, she would be considered for tenure at the school. Plaintiff's contract was renewed in 1988 (for the 89-91 school years) and in 1990 (for the 91-93 school years). In 1992, plaintiff was considered for a one-year contract renewal. Despite the favorable recommendation of her Department, her contract was not renewed and plaintiff was subsequently terminated following the 1993 academic year.
Kaplan claims that the process by which she was evaluated for contract renewal was tainted by gender discrimination. She contends that the alleged discrimination manifested itself in a series of highly unusual events that occurred during her evaluation process, including: (1) the resignation of Department Chair Terry Browne from the evaluation process; (2) the referral of her application to a university-wide Faculty Personnel Committee; and, (3) the consideration by the Faculty Personnel Committee of a student-written letter that under the University's Constitution should not have been included with Kaplan's application. I find that these irregularities occurred because of discrimination against Kaplan by defendant Browne. Moreover, I find that, although Browne himself did not make the decision to discontinue Kaplan's contract, his discriminatory actions so infected the evaluation process that the decision not to renew was based on an impermissible gender discrimination against the plaintiff.
Terry Browne was Chairman of the Department of Theatre and Dance when Kaplan was hired and continued in that capacity until the beginning of the 1992-93 academic year. Plaintiff introduced substantial evidence that during his tenure as Chair, Browne discriminated against women, including the plaintiff. Kaplan, together with Associate Professor Johnnie Ferrell and Professor Steven Stubblefield (both tenured professors in the Department of Theatre and Dance) testified that Browne routinely treated female faculty members differently than male members. They testified that during departmental meetings, Browne often interrupted women, preventing them from expressing their views, and discredited their opinions by ignoring and disregarding them. Although Browne denied interrupting women or cutting them short, that testimony was undermined by defense witness Jonette Lancos, also an Associate Professor in the Department of Theatre and Dance, who testified that although she did not believe that Browne discriminated against women, she felt that he treated all members of the faculty rudely and disrespectfully during faculty meetings.
Kaplan testified that Browne discouraged women from engaging in activities otherwise routinely engaged in by men. As an example, Kaplan testified that Browne opposed Kaplan's wish to stage a student play with an all-female cast. According to Kaplan, because women constituted roughly 60% of the student body at Geneseo, all-female plays were common, and indeed, Browne had directed at least one such play. Kaplan also testified that Browne discouraged her from participating in a charity group she founded, but did not have the same opinion with respect to a male professor's involvement in that group following her departure.
Plaintiff testified that Browne fought many of her initiatives, despite the fact that the Department ultimately approved most of her suggestions. For example, Kaplan contends that Browne opposed her idea to teach a new course in which students would stage two plays as opposed to one. Despite Browne's opposition, the initiative was unanimously approved by the Department. When Kaplan suggested changing one of the plays to be performed, Browne opposed it, and accused Kaplan of attempting to change the play without his authorization. Again, the Department voted unanimously to change the play.
Following those incidents, Browne called Kaplan into his office and informed her that she would not be teaching an acting course which had previously assigned to her. According to Kaplan, his reasons for removing her were that he was "concerned" about her teaching ability, despite the fact that he had never observed her teaching.
Corroborating evidence concerning Browne's bias against women came from the testimony of Professors Ferrell and Stubblefield. Both testified that Browne, in criticizing a production staged by Kaplan, told them that the only redeeming part of the first act had been that the female lead had "nice big titties." Kaplan testified that Browne once remarked that a female student had a "disgusting fat ass" but that he "fucked her anyway just to see what it was like." Johnnie Ferrell testified that Browne had called a student who failed to show up for a costume fitting a "cunt," and had asked Ferrell to take a female lead out of her role because she was "not pretty enough." In the Spring of 1991, Ferrell heard Browne state with regard to Kaplan and her impending divorce that: "I wouldn't fuck that cunt either." Ferrell and Stubblefield both testified that Browne asked them "how they could support such a man-hating bitch." Kaplan testified that Browne told her that Jonette Lancos (then a lecturer in the Department) "was a bitch" and that he would like to have her fired but was afraid of a lawsuit.
Kaplan testified that in the Spring of 1991, he was asked by Browne to help get rid of Kaplan on grounds that "this type of woman should not be a tenured member of this department." Based on Browne's actions toward women, Stubblefield testified that he believed Browne was a misogynist.
Strikingly, none of this testimony was controverted. Although defendant Browne testified, he never denied making any of the discriminatory statements attributed to him. While he denied treating Kaplan differently at meetings, he failed to controvert the damaging, unequivocal testimony (much of which was corroborated) that he often referred to women, including Kaplan, in vulgar sexual terms.
Finally, Browne's own admissions, as recorded in his personal diary, portions of which were admitted into evidence as Exhibit 20, reveal that Browne viewed his problems with Kaplan, at least in part, along gender lines. In his February 29, 1992 entry, Browne wrote of Kaplan, "She is anti-male in subtle and not subtle ways." On May 8, 1992, after writing that Kaplan brought out the worst (and on occasion best) in him, he lamented that "it is rough being a member of the mutant albino genetic-recessive global minority, especially of the penile encumbered variety."
Based on the evidence adduced at trial, I find that Browne discriminated against Kaplan on the basis of her gender. He treated her and other women differently at meetings, and spoke of her in disparaging, gender-specific terms including calling her a "bitch," a "cunt," and a "man-hater."
A mere finding, however, that Browne discriminated against women, or even Kaplan specifically, is not alone dispositive of whether or not she was terminated because of her gender. Because Browne was not the final decision maker in the evaluation process, nor even formally involved in the process, plaintiff must establish that Browne's discrimination against her affected the evaluation process in such a way that it caused her contract to be terminated because she is a woman.
Plaintiff presented credible evidence that she was evaluated differently than other faculty members in her department, that the irregularities in her evaluation process stemmed from Browne's discrimination against her, and that the irregularities led to the termination of her contract. Although plaintiff submitted evidence of a number of anomalies that occurred during the evaluation process, I find the following actions were particularly responsible for plaintiff's termination. Although Browne did not take part in her departmental evaluation (at plaintiff's request) he did influence the process by soliciting letters from current and former students who were critical of plaintiff's performance. This information (in particular, a letter written by Michael O'Donohoe) was submitted to the Provost and eventually to the Faculty Personnel Committee without Kaplan's knowledge or consent - a clear violation of the University's evaluation process. This material was not part of Kaplan's dossier yet had a critical impact in influencing the unfavorable vote of Faculty Personnel Committee. Both William Cook, Chair of the Committee, and Karen Duffy, a member, testified that the O'Donohoe letter had influenced the vote, the result of which was three-to- two recommending against renewal of Kaplan's contract.
Also, on cross-examination of Carol Harter, the following was elicited:
The O'Donohoe letter had a significant impact and should not have been considered by the Faculty Personnel Committee without at least first giving Kaplan the opportunity to respond to it.
Historically, when an assistant professor's contract came up for renewal in the Department of Theatre and Dance, a Departmental Personnel Committee made up of the tenured faculty of the Department, including the Chair of the Department, would make a recommendation to the University Provost as to whether or not the candidate's contract should be renewed. Typically, the Department Chair would make a separate recommendation to the Provost, who would then forward those recommendations along with his own to the President of the University for a final determination as to whether or not the contract would be renewed.
On January 24, 1992, however, Kaplan filed a grievance against Browne to have him removed from taking part in her application for contract renewal. Her reasons for having Browne removed from the evaluation process were because he (1) discriminated against women; (2) exhibited animosity towards her; and (3) had publicly stated that he would work to prevent renewal of her contract.
The evidence clearly demonstrated that Browne not only discriminated against women, but sought to prevent Kaplan from having her contract renewed. As previously stated, Browne routinely discriminated against Kaplan during meetings and made many discriminatory remarks about plaintiff. Moreover, Johnnie Ferrell and Steven Stubblefield testified that Browne had asked them to help him prevent Kaplan from having her contract renewed, thus effectively preventing her from ever being considered for tenure in the Department. Kaplan testified that Browne told her prior to requesting renewal of her contract that it would not be renewed.
One month after the grievance was filed, Browne requested in writing that he be relieved from evaluating Kaplan. He did so after being informed by Faculty-Student Relations Vice President Ron Satryb that while the University could not remove him from the evaluation process (because of his tenured status), he would probably lose a sexual discrimination suit if Kaplan brought one against him. See Exhibit 20, page 10. ("Satryb told me Tuesday that if I were to go before a human rights panel charged with sexual discrimination, I would lose.").
In the Spring of 1992, Kaplan was evaluated by the tenured professors in the Theatre and Dance Department with the exception of Terry Browne. The evaluation was based on criteria such as intellectual rigor, classroom performance, responsiveness to students, contributions to the discipline, and professional and public service. The Department gave her a 9.8 out of 10, one of the highest scores ever given to a candidate for renewal in the Department. The Department Committee then forwarded a favorable recommendation to the Provost requesting that Kaplan's contract be renewed. Under normal circumstances, Don Spencer ("Spencer"), the University Provost, would have for- warded the Department recommendations together with his directly to the University President.
Spencer, however, instead referred Kaplan's application to the Faculty Personnel Committee. Kaplan had requested this only if Browne was not removed from the initial departmental evaluation process. That Committee consisted of five faculty members of the University elected by an at-large faculty vote. Under the University's Faculty Constitution, that Committee is charged with reviewing all applications for promotion or continuing appointment (tenure). The Committee may also hear "Any case in which an individual Faculty member (in his/her own case), a Department Chair, or a Department Committee asks in writing for the Committee's review and recommendation regarding promotion, continuing appointment, or renewal of term appointment." Constitution of the Faculty at the State University of New York at Geneseo, Article Three § 4 (c) (1) (b); submitted as Exhibit 3-C.
The Faculty Personnel Committee was without authority to evaluate Kaplan's application for renewal. Neither she, the Department Chair, nor the Department Committee had requested review of her renewal application by the Faculty Personnel Committee and, therefore, under the clear provisions of the Faculty Constitution, the Faculty Personnel Committee lacked authority to review her application. Nevertheless, the Provost, acting on behalf of the University President Carol Harter, requested that the Faculty Personnel Committee review the application. President Harter testified that she requested review of the application by the Faculty Personnel Committee because there was no recommendation by the Chair of the Department, and because the Departmental Committee evaluating Kaplan was so small.
In addition to reviewing Kaplan's application without authority, the Faculty Personnel Committee also reviewed material that under the Faculty Constitution should not have been considered and yet was improperly placed in her application file by the University Provost. Based on the evidence adduced at trial, I find that the improper review of this material affected the opinions of committee members and prejudiced the plaintiff.
The Faculty Constitution provides that the Faculty Personnel Committee shall only review material "that has been made available to the Provost, and which has been released in writing to the Committee by the Candidate." Faculty Constitution at Article III, § (4) (c) (2) (emphasis added). In the instant case, however, the Faculty Personnel Committee reviewed in addition to the material authorized by Kaplan, an unauthorized letter written by Michael O'Donohoe, a student in one of Kaplan's classes.
O'Donohoe's letter was critical of Kaplan and describes her as "an intense advocate for female rights." He states that Kaplan, in her "zeal to promote female rights, ignored the rights of people in general." He claimed to be intimidated by Kaplan, and complained at length about a classroom event testified to during the trial, involving a male student wolf-whistling at Kaplan during class, and telling her she looked "hot." According to Kaplan, after the student whistled at her, she escorted him outside of the classroom and, within earshot of the class, chastised him for making the remarks. O'Donohoe complained in his letter that Kaplan's treatment of the student was "dehumanizing." With respect to his own dealings with Kaplan, he accused her of "academically blackmailing" him and sexually harassing him by calling him names and stereotyping his behavior.
At the same time that O'Donohoe wrote this letter, he was taking an advanced course (called a directed study) from Terry Browne, in which only the two met at least once a week. Browne acknowledged that O'Donohoe had complained about Kaplan during their private meetings and advised O'Donohoe that he could "tell his story" to the Provost. Browne denied helping O'Donohoe write the letter or soliciting him to write the letter. In fact, Browne claims he never saw the letter -- even up to the day of his testimony in court.
I find Browne's testimony not credible with respect to his involvement with the O'Donohoe letter. Browne's own admissions reveal that he had knowledge of the O'Donohoe letter, and the repercussions that the letter had once it had been sent to the Provost. On April 15, 1992, five days before Provost Spencer received the letter, Browne wrote in his diary that "Mike told the Provost to go ahead and put his letter in." On April 27, 1992, after the letter had been submitted to the Provost, Browne wrote that O'Donohoe would be meeting with the Dean of Students and Kaplan, and another Dean "to balance the sexes." On May 2, 1992, Browne wrote that O'Donohoe had met with Vice President Ron Satryb and that Satryb had explained to O'Donohoe his options with regard to how to proceed with his complaints against Kaplan.
Moreover, despite Browne's contention that he did not solicit O'Donohoe to submit a letter to the Provost against Kaplan, it is clear that Browne was engaged in a campaign to solicit a number of letters to be used against her. On April 7, 1992, Browne met with Provost Spencer and had asked if a complaint against Kaplan by his Secretary, Ann Forbes, had been acted on. He also asked if a complaint by Jonette Lancos had been received. On April 15, just before noting that O'Donohoe had authorized the Provost to "put his letter in," Browne wrote that Jonette Lancos had informed him that she would not be writing the Provost because she felt intimidated. On April 21, 1992, he wrote that "Mishele [a former faculty member] called me back Monday and will write a letter this week." On May 13, 1992, he wrote that "Mishele's letter to the President came yesterday and was a doozie. It is very particular and damns Randy [Kaplan] in pretty much the way I told Don [Spencer} she operated." Based on Browne's close relationship with O'Donohoe and the fact that he solicited a number of people to write letters against Kaplan, I find that the circumstantial evidence demonstrates that Browne more likely than not did solicit O'Donohoe to write a letter against Kaplan and submit it directly to the Provost without Kaplan's knowledge or consent and was calculated to influence non-renewal of her contract.
According to Professors Karen Duffy and William Cook (both members of the Faculty Personnel Committee), the O'Donohoe letter was important to the Committee in evaluating Kaplan's application. Because this single letter raised doubts in the minds of some of the Committee members as to Kaplan's abilities to teach and relate to students, the Committee attempted to obtain the results of student evaluations of Kaplan's performance, known as SOFI's (student opinion of faculty instruction), for the recently concluded Spring 1992 semester. Although the Committee had Kaplan's SOFI's from the previous five years, and despite the fact that Kaplan consistently scored higher than both the department and University averages, the Committee wanted the most recent evaluations to determine if any of O'Donohoe's accusations were supported by survey results. Professor Cook testified that under normal circumstances, the Committee would not have had the Spring 1992 SOFI's, and would not have even requested them for use in the evaluation.
After requesting the Spring 1992 SOFI's, the Committee learned that Kaplan, despite faculty rules to the contrary, had not submitted SOFI forms to her students that semester. According to Karen Duffy, the lack of SOFI's weighed against Kaplan when the Committee voted on her application for renewal.
After reviewing Kaplan's application, along with the O'Donohoe letter, the Committee recommended by a three-to-two vote that Kaplan's application be denied. According to Duffy, that recommendation was made because of the lack of SOFI's for the spring 1992 term, and because she believed Kaplan was not collegial. Duffy based this opinion on the O'Donohoe letter, and an incident involving her personal friend, Theatre and Dance Instructor Jonette Lancos, in which Kaplan allegedly unprofessionally criticized Lancos about a play while in a hallway where students and other faculty members (had they been present) could have heard the discussion. Although Duffy believed this conduct was serious and unprofessional, she never discussed it with Kaplan or Department Chair Terry Browne. Rather, the first time she brought it up was during Committee meetings where Kaplan had no opportunity to explain her side of the story. She also subsequently privately discussed the incident with Dr. Harter during Harter's investigation of the plaintiff's application for renewal.
I find that consideration of the O'Donohoe letter by the Committee was improper and occurred as the result of Browne's discriminatory animus against the plaintiff. Browne campaigned to have students and faculty members write negative letters against Kaplan and to have them submitted directly to the Provost. According to Browne's diary, far from his claim of not being involved in Kaplan's evaluation, he communicated with the Provost on almost a daily basis about the details of Kaplan's application and her status. He spoke directly to the Provost about the letters he had solicited and asked if they had been received or acted upon. The Provost, despite Faculty Constitutional provisions to the contrary, included O'Donohoe's letter along with the rest of Kaplan's application. Kaplan was not informed of the inclusion of the O'Donohoe letter and was not given an opportunity to rebut it. The O'Donohoe letter proved extremely damaging to Kaplan's application. It, along with the lack of SOFI's for the Spring 1992 semester (which would not have been considered by the Committee but for the letter), caused Kaplan's application for renewal to be rejected by the Committee. Had Browne not engaged in a campaign against the plaintiff, the O'Donohoe letter most likely would not have been written, and almost certainly would not have been included in Kaplan's contract application against University regulations, and without her knowledge. Because Browne was motivated by gender discrimination against the plaintiff, I find that the inclusion of the O'Donohoe letter with Kaplan's application severely tainted the evaluation process, and prejudiced the plaintiff.
This conclusion is reinforced by the fact that a male teacher who was up for promotion in the Spring of 1994 was not affected in his promotion evaluation by allegations that he had made unprofessional comments to a female student. Instead, that incident, along with two others, were handled under the University's grievance system, and the Professor was fined $500.00 for his actions. That disciplinary action was not made a part of the Faculty Personnel Committee's record and therefore, did not affect the Committee's recommendation. In contrast, Kaplan's application was affected by charges (which were never formally brought in a grievance) that were made without her knowledge, and to which she had no opportunity to respond.
Although Browne did not make the ultimate decision whether to renew Kaplan's contract, his bias against the plaintiff tainted the decision making process and resulted in a decision that was based on discrimination against her. Despite the fact that Kaplan had been unanimously recommended for reappointment by the tenured faculty members of her department, her application was not only improperly sent to the Faculty Personnel Committee for further review by the Provost but the O'Donohoe letter, and related information imparted to the Committee by Karen Duffy, affected the Committee's decision to reject Kaplan's application for renewal.
I find the Provost's recommendation was not based on the required criteria for evaluating an application for contract renewal, and in fact, was based at least in part on criteria that was suggested by Browne. Browne had often complained that plaintiff was not collegial, and in 1991, attempted to have "collegiality" included as a criteria for reappointment at the University. During a 1991 meeting of the College Senate, Browne proposed that "collegiality" be included as an item in faculty evaluations. His proposal was rejected because it was not an objective criteria, and could reduce tenure or promotion decisions to "popularity contests." See College Senate Minutes of March 19, 1991 at p. 266.
Moreover, it is reasonable to infer, based on the evidence presented, that Browne communicated his feelings about Kaplan to Spencer. Browne discussed the Kaplan application with Spencer on an almost daily basis, and Spencer kept him informed of the proceedings. (See Browne Diary at p. 21: "I had better do some catching up on the Kaplan affair . . . [L]ast Monday I went to see Don [Spencer] to find out what was going on . . . . . "; p. 23: "Thursday I talked with Don . . . . . He said I should not assume that she [Kaplan] will get renewed." Additionally Browne was active in campaigning against Kaplan, as evidenced by his attempts to solicit the help of current and former faculty, and University staff and students to express opposition to her renewal.
By the time Kaplan's application reached the President's office, three separate recommendations had been made regarding the plaintiff's candidacy. The Theatre Department had strongly recommended renewal of Kaplan's contract. The Faculty Personnel Committee by a 3-2 vote had recommended that Kaplan's contract not be renewed. Likewise, Provost Spencer had recommended that the contract not be renewed. According to President Harter, she had also received numerous letters both in support and in opposition to Kaplan's contract renewal. In order to determine whether or not Kaplan's contract should be renewed, President Harter conducted her own investigation: "I called the people I wanted to call." This too was an irregular occurrence as Harter testified that she rarely involved herself so deeply in an application for a contract renewal. She indicated that she was aware of the dissension in the Theatre and Dance Department and felt that Browne should not continue as head of that department.
Harter contacted a number of University professors and staff in the Music Department and asked their opinions of plaintiff's ability to get along with her co-workers. Despite her extensive investigation, Harter specifically declined to state her reasons for declining to renew Kaplan's Contract. See Letter from Carol Harter to Randy Kaplan dated July 2, 1992, submitted as Trial Exhibit 5(r). However, she testified that she did meet with Kaplan before she made her decision and afforded her an opportunity to submit a letter of explanation (Exhibit 29) in her behalf. Harter explained to Kaplan that her investigation revealed an arrogance in not completing SOFI's and that she had an intimidating manner with students. She claimed she gave Kaplan every opportunity to acknowledge the proble, "to give her a chance" to admit that she was part of the problem and that she would strive to improve, but none was forthcoming. Harter insisted that she had no bias against women and exercised her authority not to renew plaintiff's contract based on a full consideration of all the material presented to her.
Kaplan's account of the meeting was quite different. She claimed that Harter was very angry with her and told her, "you are a pain in the ass." The O'Donohoe letter was an issue with Harter because she told Kaplan, "If I let you say, you must promise that I will never get another letter like the O'Donohoe letter."
Title VII of the Civil Rights Act of 1964 prohibits an employer from "hir[ing] or . . . discharg[ing] any individual, or otherwise . . . discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . " 42 U.S.C. § 2000e-2. To state a claim for unlawful gender discrimination under Title VII, a plaintiff must establish that she is a female, was qualified for the position, was discharged, and that the discharge occurred in circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 782 (1973). Should a plaintiff establish a prima facie case of unlawful gender discrimination, the defendant must come forward with a legitimate, non- discriminatory reason for taking the adverse employment action against the plaintiff. Id. Once an employer has stated a legitimate, non-discriminatory reason for taking adverse action against the plaintiff, the plaintiff must come forward with evidence that the employer's stated reason is pretextual, and that the real reason for the action was impermissible gender discrimination. Id.
I find that plaintiff has stated a prima facie case of gender discrimination. There is no dispute that plaintiff is a female, was qualified for the position of professor of Theatre and Dance, and was terminated following non-renewal of her contract. Moreover, there is ample evidence that she was terminated under circumstances giving rise to an inference of discrimination. The uncontroverted testimony established that Browne criticized Kaplan using sexually derogatory language, and used such language about women in general. Additionally, the evidence established that Browne treated women differently during departmental meetings by being rude and by not allowing them to voice their opinions.
Such evidence properly leads to an inference that Browne discriminated against Kaplan. Evidence that a supervisor treated men more favorably than women may lead to an inference of discriminatory intent. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2nd Cir. 1994) (citing Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 193). Moreover, evidence of employer's criticism of an employee in gender-specific, degrading terms may lead to an inference that the employer was motivated by a discriminatory animus. Chambers, 43 F.3d at 37 (citing Ostrowski v. Atlantic Mutual Insurance Companies, 968 F.2d 171, 182 (2nd Cir. 1992).
Plaintiff also presented evidence that numerous irregularities occurred during her evaluation process, and that the irregularities stemmed from Browne's discrimination against her. "Departures from procedural regularity . . . can raise a question as to the good faith of the process where the departure may reasonably affect the decision." Zahorik v. Cornell University, 729 F.2d 85, 93 (2nd Cir 1984). In this case, the procedural departures, including the removal of Terry Browne from the process, the evaluation of the application by the Faculty Personnel Committee, the consideration of the O'Donohoe letter by the Faculty Personnel Committee without the plaintiff's knowledge or permission, and the use by Spencer of non-standard evaluation criteria (collegiality) can reasonably lead to an inference that discrimination played a role in the decision not to renew her application. Thus plaintiff has established that the decision not to renew her contract arose under conditions giving rise to an inference of discrimination, and accordingly, has stated a prima facie case of discrimination.
Defendants' claim that Kaplan's contract was not renewed because she had poor working relationships with faculty and students. Defendants also contend that Kaplan failed to follow mandatory procedures with respect to securing student evaluations of her teaching (SOFI's), and requesting time off from work. The reasons articulated by defendants state legitimate, non-discriminatory reasons for terminating the plaintiff.
I find that Kaplan has established that the reasons given for her termination were pretextual, and has demonstrated that discrimination was the real reason for her termination.
Harter testified, and Spencer indicated in his recommendation to the president, that Kaplan's lack of collegiality was a major reason for the non-renewal of her contract. Collegiality, however, is not an official criteria upon which applicants are evaluated for contract renewal. Rather, as stated in the University's written policies and procedures, the criteria to be used are the professor's instructional contributions, including subject mastery and teaching effectiveness; professional contributions, including publications, creative performances, research, and participation in professional organizations; and academic and public service activities. See Exhibit 5(c). However, the various categories are weighted, with instructional contributions comprising 50% of the total, professional contributions constituting 35% of the total, and public service contributing 15% of the total rating. William Cook, Chair of the Faculty Personnel Committee, testified that collegiality, even if it could arguably be considered as part of an evaluation, would only constitute 5% of the total. Thus, even if plaintiff were considered uncollegial, other more important considerations should have been addressed, and should have weighed more heavily in her favor. I thus find that the use of "collegiality" as a reason for terminating the plaintiff is pretextual.
President Harter claimed that she was appalled by Kaplan's failure to administer SOFI's for the Spring 1992 term, and that Kaplan's failure to do so greatly influenced her decision to discontinue Kaplan's contract. As stated above, however, under normal circumstances, Spring semester SOFI's would not have been available for review for any candidate seeking renewal in the Spring of 1992. The only reason SOFI's were requested was that the Faculty Personnel Committee had improperly reviewed the O'Donohoe letter, and sought the SOFI's to either corroborate or controvert the allegations made in the letter. Had that letter been ignored as it should have been, the lack of SOFI's would not have been taken into consideration.
Additionally, despite the fact that SOFI's were mandatory, several faculty members, including Meg Stolee and Duffy, testified that they in the past failed to administer SOFI's to certain classes. Duffy in fact intentionally neglected to administer SOFI's on one occasion to determine whether or not she would be disciplined for that failure. According to her testimony, there were no repercussions for her failure to administer SOFI's. I thus find that defendant's reliance on plaintiff's failure to submit SOFI's is pretextual.
Provost Spencer stated in his memorandum to the President that Kaplan's failure to observe university policies contributed to his recommendation that her contract not be renewed. However, the information relied on by Spencer was either incorrect, or related to incidents that occurred after he had made his intial recommendation against renewal (without comment) on June 5, 1992. President Harter later asked him to explain his reasons for his recommendation and, in a June 22 memorandum, Spencer explained that, inter alia, Kaplan had failed to submit midterm grades in the Spring of 1992, and had failed to attend meetings on June 4, 5, 6, and 9 of 1992. Spencer, however, later acknowledged that Kaplan had submitted Spring 1992 midterm grades. Additionally, the fact that plaintiff missed four meetings could not have been a basis for his initial recommendation, as three of those meetings occurred on or after the date of his initial recommendation. The other administrative infirmities Spencer complained of regard Kaplan's alleged failure to report three sick days she took during the Spring 1992 semester. However, this allegation would more properly be the subject of a disciplinary charge under the University's disciplinary system, rather than a charge to be considered ex parte in a contract renewal evaluation. None of the criteria listed for evaluation of a candidate's application for contract renewal include compliance with sick-time procedures. Rather the criteria concern the candidate's academic stature, teaching ability, and contribution to the University and Profession, none of which were discussed by Spencer.
The evidence demonstrates that plaintiff was not evaluated in a manner consistent with other candidates for renewal. Unlike other candidates, Kaplan's academic achievements (whch were noteworthy) were not seriously considered by those who recommended that her contract not be renewed. Instead, those persons, including the Faculty Personnel Committee, Provost Spencer, and President Harter, focused on Kaplan's interpersonal relations skills, a consideration that should not, according to Univeristy policy, have played a dominant role in plaintiff's evaluation. The reason Kaplan's evaluators focused on her collegiality was the improper consideration of a critical letter written by a student who had a close student-teach relation- ship with Browne. The evidence showed that the letter should not have been included with Kaplan's application, but was put with her application materials by Provost Spencer, a person with whom Browne communicated on virtually a daily basis. The evidence also demonstrated that although the Faculty Personnel Committee was not authorized to review Kaplan's application, and moreover should not have considered the letter in its deliberations, it not only considered the letter, but voted against Kaplan's renewal in large part on the basis of the letter. William Cook, Chair of the Faculty Personnel Committee, testified that, absent the O'Donohoe letter, the Committee would have probably voted to approve Kaplan's application.
Plaintiff also established that O'Donohoe letter was just one of many solicited by Browne. Although Browne denied any involvement in writing the O'Donohoe letter, the circumstantial evidence leads to a conclusion that he was involved. It is uncontroverted that Browne and O'Donohoe had a close student-teacher relationship. O'Donohoe took a directed study from Browne in which the two worked one-on-one in writing a play. It is also uncontested that O'Donohoe complained about Kaplan to Browne, and that Browne suggested that O'Donohoe "tell his story" to the Provost, which is exactly what O'Donohoe did. Browne later wrote that O'Donohoe had told Spencer to "put the letter in." Browne also solicited the assistance of Professors Ferrell and Stubblefield in his quest to rid the Department of Kaplan, whom he referred to as "a man-hating bitch." Browne solicited letters from Jonette Lancos and a former female faculty member. In sum, it is clear from the evidence that Browne engaged in a campaign against Kaplan, and that he enlisted O'Donohoe (and others) to assist him in preventing Kaplan from receiving a contract renewal. Thus, the inclusion of the O'Donohoe letter with Kaplan's application was based on discrimination against the plaintiff by Browne.
It is not necessary for plaintiff to prove that the person charged with making the ultimate decision regarding her renewal discriminated against her as along as she can prove that the decision made resulted from a discriminatory process. See Price Waterhouse v. Hopkins, 490 U.S. 228, 255 (1989) (discrimination found where committee, which did not itself discriminate against plaintiff relied on sexually stereotypical remarks made by others in deciding not to offer partnership to employee); Rosen v. Thornburgh, 928 F.2d 528, 534 (2nd. Cir. 1991) (factfinder may properly find that employment decision was the product of religious bias, even where ultimate decision maker was unaware of plaintiff's religion provided that biased supervisors played a role in the decision). Thus, plaintiff need not establish that Harter, the ultimate decision maker, was biased against her. She need only show, as she has, that the decision making process was tainted with gender discrimination, and that that discrimination resulted in an adverse action against her. Because plaintiff has carried this burden with respect to her claims under Title VII, Title IX, and the New York Human Rights Law, I find in her favor on those claims.
Claims brought under the New York Human Rights law are analyzed under the same framework as claims brought under Title VII, Boyce v. New York City Mission Society, 963 F.Supp. 260 (S.D.N.Y. 1997). Because plaintiff successfully proved her claim of discrimination under Title VII, I find that she has proved her case under the New York Human Rights Law.
Title IX of the Education Amendments of 1972 prohibits gender-based discrimination against persons seeking to participate in or benefit from any education program that receives federal funding. 20 U.S.C. § 1681 (a). Claims for employment discrimination that are brought under Title IX are analyzed under the standards application in Title VII gender-discrimination cases. Ward v. Johns Hopkins University, 861 F.Supp. 367 (D.Md. 1994). Because plaintiff has established that she was discriminated against under Title VII, I find that she has established that she was discriminated against under Title IX.
Plaintiff alleges that Browne tortiously interfered with her employment contract with Geneseo. To state a claim for tortious interference with a business contact, plaintiff must establish that: 1) she had a contract with Geneseo; 2) Browne knew of the contract; 3) Browne intentionally procured a breach of that contract; and 4) she was damaged as a result of the breach. Lama Holding C., v. Smith Barney, Inc., 88 N.Y. 2nd 413 (1996). Plaintiff has failed to establish that any contract was breached by Geneseo. Although Geneseo declined to renew plaintiff's contract, it honored the contract that it had made with her to employ her through the end of the 1993 school year. Nothing in the contract obligated either party to renew the contract. Accordingly, I find that plaintiff has failed to prove that defendant Browne intentionally interfered with her employment contract.
I find that plaintiff is entitled to reinstatement as a Professor of Theatre and Dance at the State University of New York at Geneseo. Plaintiff shall be reinstated to her position as if her contract had been renewed in 1992: i.e., an Assistant Professor who, through the accumulation of years of teaching at the University, may be considered for tenure. However, plaintiff should be given a reasonable opportunity to reestablish her credentials prior to being considered for tenure. This Court may not award plaintiff tenure, as there is no assurance that plaintiff would have received tenure but for the discrimination against her.
Moreover, plaintiff is entitled to an award of back pay, including the wages she would have earned and the value of fringe benefits, including health insurance and lost pension contributions. I find that, based on the salary plaintiff would have earned had she remained employed at Geneseo, plaintiff is entitled too $80,500.00 in back pay. Moreover, plaintiff is entitled to an additional $18,243.00 in reimbursement for medical insurance expenses, and $18,369.00 in lost pension benefits. Thus, plaintiff is entitled to monetary damages in the amount of $117,112.00, plus prejudgment interest. I decline to award plaintiff punitive damages. Plaintiff may make a separate application on notice for attorney's fees.
I find that plaintiff has prevailed on her Title VII, New York Human Rights Law, and Title IX claims against the State University of New York at Geneseo. She has not met her burden of proof with respect to her tort claim against Browne and that claim is dismissed. Because plaintiff has established that she was discriminated against on the basis of her gender, I find that she is entitled to reinstatement at the State University of New York at Geneseo, and an award of damages in the amount of $117,112.00, plus prejudgment interest and to have judgment therefore entered in her favor against State University of New York at Geneseo. Plaintiff is not entitled to punitive damages. Finally, plaintiff's attorney may make separate application for an award of reasonable attorney's fees on notice to the defendant.
ALL OF THE ABOVE IS SO ORDERED.
MICHAEL A. TELESCA
United States District Judge
Dated: Rochester, New York September 24, 1998
UUP became involved in this case in 1991-92 when Dr. Kaplan asked for help because she believed she was the victim of gender discrimination from her department chair. As her contract renewal process took place in the spring of 1992, the Geneseo administration took actions that violated federal and state anti-discrimination laws, the UUP contract, SUNY policies, and Geneseo's own policies and procedures. UUP filed numerous grievances about these violations, but Geneseo's hearing officers consistently turned them down, often for irrelevant reasons. UUP ultimately concluded that Geneseo's administration was not responding in good faith to these serious violations and then recommended that Dr. Kaplan seek redress through the federal and/or state courts.
In order to go to court, Dr. Kaplan needed money for legal representation. The Geneseo chapter suggested that she apply for help from UUP's legal defense fund. In order to receive this money, Dr. Kaplan had to apply to a statewide UUP committee, which did not include any members from Geneseo itself. She successfully made her case and did receive financial support from this fund in the form of an interest-free loan. Although UUP provided Dr. Kaplan with much needed financial resources, she retained full control over decisions about her case.
The September 1998 court decision contained what were essentially UUP's arguments about the violations contained in Dr. Kaplan's 1991-92 renewal process. It is truly tragic that the State of New York and SUNY chose not to listen to UUP then nor to any of the pretrial settlement hearings that took place through the summer of this year. Had the local administration acted in good faith several years ago to solve these issues, Dr. Kaplan probably would not have lost six years of her career and would not have endured the pain and humiliation of being non-renewed.
Dr. Kaplan is now looking forward to resuming her career here at the college. The terms of her reinstatement are currently being renegotiated.
UUP hopes that a similar case will never again occur at Geneseo. The chapter has offered, for example, to educate the members of the Faculty Personnel Committee about the contractual issues in the evaluation process. Despite the significant errors made by this Committee during the Kaplan evaluation, the current Geneseo administration argues that such training is not appropriate.
This page has been accessed times.
This page hosted by
Get your own Free Home Page