v. Burdine, 450 U.S. at 252-53. The University has created a triable issue of fact by pointing to Dr. Hindman's report regarding errors found in Plaintiff's publications.
When the Defendant has articulated a legitimate, nondiscriminatory reason, the burden then shifts back to the Plaintiff to show that the articulated reason is merely a pretext for sex or national origin discrimination. St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2747 (1993). If Plaintiff can show that Defendant's actions were more likely than not motivated by their desire to discriminate against Plaintiff, then the jury must find for Plaintiff. If the Plaintiff establishes by a preponderance of the evidence that the defendant's proffered reasons were not true, then the jury may infer that the real reason for defendant's action was discriminatory and find for Plaintiff, although it is not required to make this finding. Id. at 2749.
There exist triable issues of fact regarding whether Defendant's actions were motivated by their desire to discriminate against Plaintiff based on her sex and national origin. First, Plaintiff provides evidence that male, non-Indian professors in the applicable comparison group were treated more favorably in the tenure application process. For example, Plaintiff contends that Chairman Leslie appointed members to her subcommittee that were not the most qualified in her specialty and specifically removed from her subcommittee experts in her field who were familiar with her work. On the other hand, one of Dr. Williams' co-authors, with whom Dr. Williams is presumably friendly, was appointed to his subcommittee. In addition, Dr. Williams, who was originally denied tenure, was allowed to remain on staff until his application was reconsidered and he was given tenure. Plaintiff was not given such an option.
Plaintiff also provides evidence of procedural irregularities in the review of her application. According to the D.C. Circuit, "the adherence to or departure from internal hiring procedures is a factor that the trier of fact may deem probative and choose to consider in determining the true motivation behind the hiring decision of the prospective employer." Johnson v. Lehman, 220 U.S. App. D.C. 100, 679 F.2d 918, 922 (1982) (case involving age discrimination). It is University policy to evaluate a tenure candidate on the basis of four areas, including teaching. Student evaluations of a professor are to be considered when analyzing the professor's teaching capabilities. In this case, Dr. Nayar's student evaluations were not included in her file. See Plaintiff's Exhibit 4, attached to Plaintiff's Statement of Evidence.
With respect to national origin discrimination, Plaintiff sets forth evidence that faculty members viewed Indian math journals, in which she had published the majority of her papers, to be of inferior quality. Plaintiff's Exhibit 19 at 22-23, attached to Plaintiff's Opposition. Specific to sex discrimination, Plaintiff provides evidence that she and other female faculty members were paid less than male colleagues. See Exhibit 1 to Plaintiff's Statement of Evidence.
To what extent these male colleagues were similarly situated to the female math professors is a triable issue of fact.
Based on the foregoing analysis, the Court finds that there exist genuine issues of material fact that prevent the Court from summarily adjudicating the Title VII claim in Defendant's favor.
ANALYSIS AND DECISION - BREACH OF CONTRACT
In addition to her Title VII claim, Plaintiff also asserts that the University breached her employment contract when it failed to adhere to the provisions governing review of tenure applications. Plaintiff contends that the following provisions were breached: 1) "The tenure policy of the University shall be implemented uniformly in all schools and colleges;"
2) "The award of tenure shall be based on the judgment of academic and professional qualifications at all levels of the tenure process, this judgment to result from the careful and continued evaluation of a faculty member during a period of probation." (emphasis in the original);
3) that the Plaintiff is to be judged in the "areas of teaching, research and publications, and service to the University and the community;"
4) that an evaluation of the candidate's teaching should include "student and peer evaluation;"
and 5) that the Faculty is to establish procedures to ensure that the reviewing committee is competent to judge the work of the applicant and that this "competence should be exercised before either adverse or favorable judgments" are made.
As discussed in relationship to the discrimination claim, Plaintiff presents evidence which creates triable issues of fact as to whether the University's tenure policy was applied uniformly to the applicants for tenure within the Math Department.
Plaintiff sets forth evidence that Dr. Williams was treated more favorably than Plaintiff in that the make-up of his subcommittee included a co-author and he was allowed to remain at the University for several years until he reapplied for tenure. Plaintiff also presents evidence that the University did not uniformly apply its policy of considering student evaluations when assessing an applicant given that Plaintiff's student evaluations were not in her file.
CONTINUED AND CAREFUL EVALUATION
Whether Plaintiff's denial of tenure resulted from careful and continued evaluation is a triable issue of fact. The accuracy of the Hindman report, to what extent it was relied upon, and whether other faculty members reasonably relied on this report are questions of fact for the jury with respect to the breach of this contract provision. In addition, whether the faculty adequately considered all four criteria (teaching, scholarship, service to the University and community) is a question for the jury.
FOUR CRITERIA/ STUDENT EVALUATIONS
Plaintiff creates triable issues of fact regarding whether all four criteria were adequately considered. As mentioned previously, Plaintiff sets forth evidence that the student evaluations were not in her file.
Moreover, the evidence that Plaintiff sets forth with respect to her discrimination claim also creates triable issues as to the real factors taken into account when the faculty denied Plaintiff tenure. The D.C. Circuit has held that a plaintiff would "make out a valid, non-time-barred contractual claim if he were able to show that the University disposed of his claim in 1985 for reasons unrelated to whether he actually merited promotion (e.g., bias, use of improper criteria and the like)." Kyriakopoulos v. George Washington University, 275 U.S. App. D.C. 237, 866 F.2d 438, 445 (D.C. Cir. 1989) (emphasis in original). Thus, if Plaintiff demonstrates that the real reason she was denied tenure was because she was a female from India, then Plaintiff would make out a valid contract claim that the four merit-based criteria were not really considered.
COMPETENCE OF COMMITTEE
Whether the subcommittee was competent to judge Plaintiff's work is a question of fact for the jury. It is for the jury to decide whether those on the subcommittee could read and comprehend Plaintiff's papers and evaluate the degree to which these papers constituted significant contributions to Plaintiff's specialty and to the field of mathematics generally.
Based on the foregoing analysis, the Court finds that there exist genuine issues of material fact which prevent the Court from summarily adjudicating the breach of contract claim in Defendant's favor.
Where the adverse party "set[s] forth specific facts showing that there is a genuine issue for trial," the moving party is not entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(e). In this case, the Court held two hearings on Defendant's motion for summary judgment and required the parties to file supplemental submissions detailing the evidence supporting their respective positions. Based on the oral argument and the papers submitted, the Court is satisfied that Plaintiff has created triable issues of material fact with respect to both the Title VII and breach of contract claims.
An appropriate order accompanies this memorandum opinion.
United States District Judge
This matter comes before the Court on Defendant Howard University's motion for summary judgment. The Court finds that there exist genuine issues of material fact with respect to both the Title VII claim and the breach of contract claim. Accordingly, the Court hereby ORDERS that Defendant's motion for summary judgment be DENIED. The case has been reassigned to Judge James Robertson for all further proceedings.
United States District Judge