JOHN E. STEELE, Senior District Judge.
This matter comes before the Court on the defendant Florida Gulf Coast University Board of Trustees' Motion for Summary Judgment (Doc. #64) filed on January 19, 2016. Plaintiff filed an Opposition (Doc. #79) on February 16, 2016.
On December 23, 2014, the Court issued an Opinion and Order (Doc. #21) granting defendant's Motion to Dismiss Complaint as to the portions of Counts I, II, and III of the Amended Complaint (Doc. #8) finding that the adverse actions resulting in a denial of a raise and being placed on probation were both time barred, but the case could proceed as to the nonrenewal and termination of employment. Count I of the Amended Complaint alleges that the nonrenewal of plaintiff's employment contract, resulting in her termination, was race discrimination under Title VII; Count II alleges that these actions were national origin discrimination under Title VII; and Count III alleges that these actions were gender discrimination under Title VII. Count IV alleges a claim of retaliation under Title VII.
Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is `genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party."
In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party.
Florida Gulf Coast University (FGCU) is a public university with several colleges, including the College of Arts and Sciences (CAS). (Doc. #8 & Doc. #22, ¶ 5; Doc. #64, p. 3.) Within CAS are several departments, including the Department of Behavioral and Social Sciences (the DBSS). (Doc. #8 & Doc. #22, ¶ 14; Doc. #64, p. 4.) The majority of CAS's faculty, including plaintiff, are engaged under a three-year rolling Continuing Multi Year Appointment (CMYA) contract and evaluated annually at the end of the academic year (August-May). (Doc. #75-3, p. 101.)
Plaintiff E. Valerie Smith (Smith or plaintiff) is an African-American female born in the United States. (Doc. #8 & Doc. #22, ¶ 7.) In September 1996, plaintiff joined FGCU as a founding faculty member and professor of sociology, and was hired on a CMYA. (
During the relevant academic years, Dr. Donna Price Henry (Dean Henry) was the Dean and chief academic officer for CAS, and responsible for managing and overseeing the Department and department chairs, including Chair Strahorn, and then Dr. Joseph Cudjoe (Chair Cudjoe) who became chair in 2008. Dean Henry reported to FGCU's provost or Vice-President of Academic Affairs (VPAA), Bonnie Yegidis (Provost Yegidis), and later to Dr. Ronald Toll (Provost Toll) who took the position in 2008. The provost reports directly to the President, Dr. Wilson Bradshaw (President Bradshaw). (Doc. #64, p. 4; Doc. #79, pp. 4, 6.)
Three documents relate to the evaluation of CAS faculty: (1) FGCU's Collective Bargaining Agreement (CBA), which sets wages, hours, and terms and conditions of employment, Doc. #75-3, p. 58; (2) FGCU's Faculty Performance Evaluation Document (FPED), which sets forth the procedures and standards for evaluating faculty, Doc. #72-2, p. 14, Exh. 4; and (3) CAS's Performance and Evaluation Criteria and Process (PECAP), Doc. #65-9, p. 27; Doc. #72-2, p. 80, Exh. 6, which covers procedures and standards for evaluating faculty within CAS to the extent that the document does not contradict or invalidate the university-wide Faculty Performance Evaluation Document. The FPED controls over any inconsistent provision of the PECAP, and the CBA overrides both documents. If the FPED is silent or unspecific on any matter that is addressed by the PECAP, the authority of the PECAP is not restricted. (Doc. #66-2, Belcher 1, p. 5, § 2.2.1.) Thus, the hierarchy of the relevant documents is the CBA, the FPED, and then the PECAP.
On May 6th of each year, at the beginning of the evaluation period, the faculty member submits a Performance Development Plan (PDP) outlining the individual's academic goals and objectives for the next academic year, including teaching, scholarship, and service. (Doc. #75-3, Toll Exh. 12, p. 11.) By March 31st of the academic year, faculty members must submit an Annual Professional Development Report (Development Report) to their department chair outlining how they met their PDP, and include the course syllabi, student evaluations, scholarly works, and community activities. Additional documentation may be submitted until April 23rd. (
If the faculty member receives an "overall satisfactory" Performance Report, the faculty member receives a one-year contract extension, thereby maintaining a full three-year contract cycle. (
During probation, and by September 30th, the faculty member must draft a one-year Performance Improvement Plan (PIP) or Performance Improvement Contract (PIC) to address deficiencies, set forth objectives, and identify a plan of action for the academic year. This PIP takes the place of the PDP for the next evaluation period. By March 15th of the probationary academic year, the faculty member must have submitted a Development Report-PIC to their supervisor demonstrating fulfillment of the PIP. Two weeks thereafter, by March 31st, the supervisor submits a recommendation to the PRC for CAS with regard to whether the faculty member satisfied the PIP. By April 30th, the PRC submits its evaluation and recommendation to the dean, who makes the final decision on whether the faculty member satisfied the PIP and whether the faculty member should return to a full three-year CMYA. (Doc. #64, pp. 6-7.)
By May 6th, the dean makes the final decision based on the recommendations and provides written notice of renewal or nonrenewal to the faculty member. If the dean decides not to renew the contract, or if the dean's decision is different than the recommendations of the PRC, by June 1st the dean must provide a written report or dissenting report to the provost regarding the decision. The dean's decision may be appealed to the provost, and the provost retains authority to review and modify the final decision of the dean. (
For her 1997-1998 Annual Evaluation, plaintiff received an overall rating of exceeds expectations and signed and attached her statement in response on March 26, 1999. (Doc. #65-4, Def. Exh. 1, pp. 1-3.) Until the academic year 2005-2006, plaintiff generally received satisfactory evaluations, and mostly excellent or very good student assessments with a few anomalies.
Starting from the 2006-2007 academic year going forward, plaintiff started receiving increased low ratings from students and was late submitting her Development Report. The Annual Evaluation for the Summer 2006-Spring 2007 found that plaintiff overall did not meet expectations, and that no Development Report had been submitted "despite multiple requests and reminders." (Doc. #65-4, Def. Exh. 27, pp. 148-49.) In his June 7, 2007 letter to plaintiff, Chair Strahorn expressed that Smith had failed to meet some of the basic requirements of the position, including: difficulty meeting routine deadlines, a lack of accessibility, and failing to provide even colleagues and her supervisor with routine information in a timely fashion. (
By email dated September 14, 2007, Chair Strahorn responded that plaintiff's evaluation would not be revised, and that she had missed the chance to work with him to put together a PIP, but that she was welcome to work with him to craft the PIC, which would be similar to past PDPs. (
By letter dated October 10, 2007, to Dean Henry and Provost Yegidis, plaintiff submitted a portfolio and memo as an attachment to her evaluation to appeal the evaluation. (
For the 2007-2008 academic year, complaints from students continued and increased,
On April 30, 2008, Chair Strahorn provided plaintiff a copy of the Performance Report, and highlighted that May 31, 2008 was set aside for evaluation conferences between supervisor and faculty. (
Pursuant to a Memorandum dated July 21, 2008, to Provost Toll from President Bradshaw, Provost Toll was designated as the President's designee for purposes of administering and executing FGCU's academic agreements, approving personnel actions, and acting in the President's absence. (Doc. #65-9, Def. Exh. 106, pp. 21-22.) This delegation of authority included approval of a faculty contract renewal or nonrenewal. (Doc. #66, Belcher Dep. 45:12-18.) In August 2008, Chair Cudjoe took over the role Chair Strahorn had held.
By Memorandum dated December 18, 2008, to Dean Henry, plaintiff took issue with her Performance Report and with Chair Strahorn. (Doc. #65-7, Def. Exh. 90, pp. 36-42.) By Memorandum dated February 23, 2009, to Provost Toll, plaintiff requested a meeting to discuss her evaluations over the previous two years, and for enclosed materials to be placed in her personnel file. (
On March 12, 2009, Chair Cudjo emailed plaintiff to follow-up on the completion of her PIC and to remind her of the upcoming deadline for her to submit her documentation. (
By Memorandum dated April 21, 2009, Provost Toll notified plaintiff that her Performance Report for 2007-2008 would remain unchanged and retained, and that she would not now be permitted to add her comments since, as of August 2008, plaintiff had refused to sign the Performance Report and it was not until December 18, 2008, that she had requested a meeting with the next higher level administrator. (Doc. #65-7, p. 133, Def. Exh. 97.)
By letter dated April 21, 2009, the PRC notified Dean Henry that they reached the conclusion that plaintiff had satisfied the requirements of the PIC, and that they concurred with Chair Cudjoe that her probationary status be removed and plaintiff return to a CMYA. (Doc. #65-8, Def. Exh. 98, p. 1.)
In an email dated May 1, 2009, to plaintiff, Dean Henry indicated that she had reviewed the APDR-PIC, and the input of the PRC and Chair Cudjoe. Dean Henry requested that plaintiff submit additional supporting materials required by the PECAP, including a Development Report, by May 5, 2009. Otherwise, a decision regarding renewal would be made based on the current submissions. (Doc. #65-8, Def. Exh. 101, pp. 7-8; Doc. #65-9, p. 119.) On May 4, 2009, Dean Henry directed an employee to print and place the email in plaintiff's mailbox. (
In a letter dated May 6, 2009, Dean Henry notified plaintiff:
(Doc. #65-8, Def. Exh. 103, p. 11.)
Plaintiff did not consider herself terminated based on this letter because, in her view, it did not follow proper procedure. (Doc. #65, Plaintiff Dep. 236:9-21.) In a Memorandum dated May 12, 2009, plaintiff made an internal grievance to the Grievance Committee Chair of the United Faculty of Florida (UFF) against Dean Henry for failure to adhere to the procedures in the Collective Bargaining Agreement. (Doc. #65, Plaintiff Dep. 239:8-14; Doc. #65-8, Def. Exh. 105, p. 18.)
In a letter dated May 18 and 19, 2009, to plaintiff, Dean Henry referenced the May 6, 2009, letter and plaintiff's May 7, 2009, e-mail requesting a basis for the decision, and provided her "rationale" for the overall unsatisfactory performance. (Doc. #65-9, Def. Exhs. 108-109, pp. 98, 166, 179, 258.) On May 19, 2009, plaintiff sent an email request for informal resolution to Provost Toll, which was acknowledged. (
An informal resolution meeting was held on May 29, 2009, with plaintiff, two United Faculty of Florida (UFF) representatives, and an Associate Provost for Academic Affairs in attendance. At a second informal resolution meeting held on July 14, 2009, Dean Henry and the Appointed Mediator joined in attendance. (Doc. #65-9, Def. Exh. 109, pp. 203, 274.) On or about July 16, 2009, the informal resolution process was concluded because the dispute could not be resolved, thereby allowing plaintiff to proceed with the filing of a grievance. (
On July 23, 2009, plaintiff filed her Step 1 Grievance. (
On August 17, 2009, Dean Henry emailed the Director of Human Resources for FGCU, Steve Belcher, a copy of her May 19, 2009 letter to plaintiff providing the basis for her decision of nonrenewal in response to plaintiff's email. (
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By letter dated September 4, 2009, Provost Toll sent plaintiff a letter "[i]n response to the dissenting report from your Dean" stating that after an independent review he found that plaintiff's overall performance for the 2008-2009 academic year was unsatisfactory. (
By letter dated September 7, 2009, a Summary of Information Resolution was sent to plaintiff describing the timeline of informal resolution through August 2009. (
A FGCU/UFF Grievance form was received in the Office of the Provost on October 20, 2009, indicating that plaintiff was filing a Step 2 Grievance alleging a violation of the Collective Bargaining Agreement and the PECAP. Informal Resolution was cancelled in favor of filing the Grievance. (
On December 2, 2009, plaintiff made a Step 3 Request for Arbitration in connection with the Step 2 decision of FGCU. (
On June 28, 2010, plaintiff signed and swore her charge of Discrimination to the Equal Employment Opportunities Commission (EEOC) (Doc. #64-3, Composite Exh. A, p. 5), which was stamped received and filed on June 30, 2010. Plaintiff alleged discrimination against FGCU on the basis of race and age for the period of May 30, 2009 through September 4, 2009. On July 8, 2010, plaintiff filed an Amended Charge of Discrimination (
On October 28, 2013, a Recommendation for Closure (Doc. #64-3) was issued by the EEOC indicating that the evidence did not support the allegations of discrimination. (Doc. #64-3, Composite Exh. A, p. 3.) On or about October 31, 2013, plaintiff received her Dismissal and Notice of Rights letter from the EEOC. The original Complaint herein was filed on January 28, 2014. (Doc. #1; Doc. #8, ¶ 55b.)
The Court previously determined that plaintiff's Title VII discrimination claims were limited to the nonrenewal of her CMYA and her resulting termination.
Before filing a Title VII lawsuit, a plaintiff must first file a timely EEOC charge.
Under the CBA, Article 12, employees are entitled to a one year notice regarding non-reappointment if they have been employed for 2 or more continuous years. The CBA does not contradict the timeline or steps leading up to notice set forth in the FPED. (Doc. #75-3, Toll 13, pp. 92-93.) The Article 20 grievance procedures may take place simultaneously, and the grievant may file an EEOC charge while it is in progress and when it becomes necessary. (
The process under the FPED for faculty members on a CMYA but placed on probation following the previous year's CMYA extension review is as follows:
(Doc. #75-3, Toll 20, p. 204.) The FPED provides that the unit's chief academic administrator or Dean "must submit written report to the Vice President of Academic Affairs". (
The FPED process is consistent with the PECAP. Under § 3.3.1 of the PECAP, as it pertains to the PIC remediation evaluation process by the faculty member's supervisor and the PRC, the Dean communicates the "final decision regarding extension or non-extension of the CMYA." (Doc. #75-3, Toll Exh. 12, pp. 14-15.) Under §§ 3.3.2 and 3.3.3.4 of the PECAP, the Dean "shall submit" a written report justifying the decision to renew or not renew the faculty member's CMYA to the Provost by June 1st. The faculty member has the right to schedule a conference with the Dean with regard to the contents of the report prior to its submission, and "[a]ny appeal by the faculty member of the Dean's decision must be directed to the VPAA at this time and in this form." (Doc. #66-2, Belcher Exh.1, pp. 16, 17.) Under § 3.3.4 of the PECAP, if the result of the evaluation is nonrenewal,
(
Plaintiff's supervisor and the PRC concurred that plaintiff's probationary status should be removed and her CMYA renewed. The Dean and the Provost each rejected this position, declined to renew the CMYA, and terminated plaintiff effective in a year. Defendant FGCU wants the Dean's decision to be the final, operative "final decision" which triggered plaintiff's obligation to file her claims with the EEOC. The effect of this would be that the EEOC charges were untimely.
On May 6, 2009, Dean Henry issued her letter finding plaintiff had an "overall unsatisfactory performance", and gave notice to plaintiff that her contract would not be renewed beyond a year from the date of the letter, i.e., that she was terminated effective May 6, 2010. (
(Doc. #64-2.)
FGCU employees testified to a different view. Chair Cudjoe testified that it was his understanding that the final decision has to come from the Provost, specifically in the context of a dissenting report. (Doc. #70, Cudjoe Dep. 74:8-12; 92:22-93:9.) Mr. Brown, the Chair and a member of the PRC, stated that it was his belief that the Provost would make the final judgment if the Dean disagrees with the recommendation of the PRC, and that it was an exception that arises when a dissenting opinion is issued. (Doc. #68, Brown Dep. 64:2-6; 91:25-92:5; 115:11-16.)
The Court deals with substance, not the labels utilized by the documents or FGCU officials and employees. The evidence convinces the Court that in the circumstances of this case and under the process utilized by FGCU, the decision of the Dean was at best a tentative final decision, and not the established official position of FGCU as to the renewal or nonrenewal of plaintiff's employment. "The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer's decision is made."
The Court finds that the alleged discrimination in this case — the nonrenewal and termination — occurred on September 4, 2009. The EEOC Charge was timely filed, and plaintiff properly exhausted her administrative remedies except as discussed below.
Count II of the Amended Complaint alleges a claim of national origin discrimination under Title VII. Plaintiff claims she is a member of a protected class because she was born in the United States, and that the "real reason" FGCU did not renew her contract was because of her national origin as a U.S. born person. (Doc. #8, ¶¶69-76.) This claim is both untimely, and alternatively, without any factual support.
It is undisputed that the national origin claim was not specifically identified in either the original Charge of Discrimination or the amended Charge of Discrimination. (Doc. #64-3, pp. 5-6.) It is also undisputed that the National Origin box was not checked on the EEOC Intake Questionnaire. (Doc. #17-3, Composite Exh. C, p. 3.) Plaintiff argues, however, that the claim is "like, or related to" the claims of discrimination which were actually made in the Charges, and was therefore properly exhausted.
Because a Title VII plaintiff must first exhaust administrative remedies by filing a timely discrimination charge with the EEOC, a "plaintiff's judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination."
"The [EEOC] defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1.
Nothing in plaintiff's EEOC filings would have placed the EEOC on notice that she was claiming FGCU engaged in discrimination against her because she was born in the United States. Both Charges state that plaintiff sent an email to the EEO Officer on May 30, 2009, regarding discrimination against her "due to my race and age;" plaintiff did not refer to her birth in the United States as a basis of the discrimination. Nothing plaintiff told EEOC provided notice of this "U.S. born" claim, which was not sufficiently related to either race, age, or gender to allow EEOC to guide their investigation. Plaintiff's national origin claim was not like or related to any of her actual claims of discrimination, and therefore was not properly exhausted with the EEOC. Count II is therefore dismissed.
Alternatively, plaintiff's national origin claim lacks any factual support and therefore summary judgment is entered in favor of FGCU. Plaintiff's claim is that she was discriminated against based on national origin (i.e., being born in the United States) because she was replaced by a Caucasian foreign born male. Even if it could be said that being born in the United States is like or related to any of the actual allegations made by plaintiff, summary judgment would still be granted because there is absolutely no evidence supporting such a claim. Literally nothing in the record suggests the FGCU did not renew plaintiff's contract because they wanted to hire someone who was not born in the United States. Indeed, the record establishes that FGCU first offered the position to Krista Bywater, but she declined the job offer. It was only afterwards that the position was offered to Jan-Martijn Meij, a white male who, because he had an H1 visa, was presumably born outside the United States. (Doc. #74-3, Strahorn Exh. 22, p. 82;
The Court finds that that national origin claim in Count II is not like, or even related to the initial charge's allegations of race discrimination. Count II is dismissed with prejudice as time-barred. Alternatively, if it is like or related, summary judgment is granted in favor of defendant as to Count II.
Counts I and III assert claims or discrimination based on race and gender under Title VII, 42 U.S.C. § 2000e-2(a)(1).
For purposes of summary judgment, defendant does not contest that plaintiff was qualified for the position, that she is a member of a protected class, and that she was subjected to an adverse employment action. Defendant argues that plaintiff has not shown discrimination because she has not shown comparators. Plaintiff does not contest the absence of comparators, but argues that a comparator is not required if discrimination may be inferred from the circumstantial evidence, and there is sufficient circumstantial evidence present in this case.
A plaintiff usually sets forth her prima facie case through indirect, circumstantial evidence
"The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason."
Defendant has identified legitimate, nondiscriminatory reasons for nonrenewal of plaintiff's contract. Dean Henry identified the non-completion of PIP requirements as the basis for the nonrenewal decision, including: (1) failing to follow the correct procedure when administering the Student Assessment of Instruction in each course, i.e., by administering the assessment during a class examination; (2) failing to submit all paperwork on time, including a Sabbatical Report, and refusing to provide a copy when requested; and (3) failing to provide a complete course syllabus on the first day of class, i.e., that requires the requisite inclusion of certain policies. (Doc. #65-9, pp. 179-180.) While these reasons appear relatively trivial, they came on the heels of numerous complaints by students and by Chair Strahorn leading to plaintiff's probationary status before the decision not to renew.
Plaintiff responds to each of the three reasons for nonrenewal articulated by Dean Henry as follows: Plaintiff first argues that the Sabbatical Report was indeed submitted, but to President Bradshaw. Plaintiff states that no one provided any notice that it was not available or required, or an issue prior to Dean Henry's email request for a copy (which she refused). Prior to Dean Henry's request for a copy, the Sabbatical Report was not even considered by Chair Cudjoe or the PRC in their evaluations. (Doc. #79, pp. 20-22.) Chair Cudjoe testified that the PIC did not reference the sabbatical because it was taken in the previous academic year and so didn't fall under Chair Cudjoe's time as chair. (Doc. #70, Cudjoe Dep. 84:15-19.) Chair Cudjoe could not confirm if the sabbatical report was ever submitted, and it was never discussed or asked about by the dean or provost. (
Plaintiff notes that she notified Chair Cudjoe that she was administering the Student Assessment of Instruction on an exam day, but that neither Chair Cudjoe nor the PRC felt that it warranted nonrenewal. Plaintiff points out that a Caucasian professor who did not report her mistake of failing altogether to distribute the Student Assessment of Instruction was found to be overall satisfactory, and had her contract renewed. Chair Cudjoe testified that he would have elected to not administer the evaluation rather than doing it on an examination day "because it's spelled out that [you] don't administer it on the date you're giving an exam, and there's a reason for that. To make sure that students are not pressured to answer questions at the evaluation one way or the other due to the exam." (Doc. #70, Cudjoe Dep. 81:4-8.) Chair Cudjoe would not have denied reinstatement on this issue alone. (
Plaintiff alleges that the Syllabi were reviewed by both Chair Cudjoe, and the PRC, and found to be sufficient, but Dean Henry concluded otherwise by pointing out deficiencies. Plaintiff argues that there was no guideline or policy requiring the inclusion of certain language at the time, and therefore Dean Henry imposed additional requirements on plaintiff to legitimize her decision to not renew plaintiff's contract. On March 27, 2009, after the semester had started and syllabi were all done, defendant approved Guidelines for Course Syllabus. (Doc. #70, Cudjoe Dep. 90:10-24.) Chair Cudjoe did not think the syllabi were deficient. (
"[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
Count IV alleges a claim of retaliation. Title VII also prohibits retaliation against an employee who opposes unlawful employment discrimination, or otherwise charges or participates in an investigation or hearing into unlawful employment discrimination.
"Title VII retaliation claims must be proved according to traditional principles of but-for causation. . . ."
Plaintiff alleges that she complained of race discrimination and harassment to Dr. Charles McKinney
(Doc. #65-9, Exh. 114, p. 296; Doc. #75-5, Toll Exh. 31, p. 17.) Plaintiff also stated that she spoke to Dr. McKinney a number of times in the past about race discrimination, and with Dr. Bradshaw. (Doc. #65-1, Plaintiff Dep. 12:11-13:2.) Plaintiff did not recall having a conversation regarding race discrimination with anyone else except members of the union. Plaintiff stated that Dr. McKinney spoke to Provost Toll, albeit informally. (
Dr. Bradshaw only recalled plaintiff stating that she was being treated unfairly, but he did not recall plaintiff using the term discrimination or harassment. (Doc. #67, Bradshaw Dep. 9:21-23, 10:3-4.) Provost Toll recalled having conversations regarding plaintiff with Dr. McKinney, about how she sought him out to talk, but Provost Toll did not specifically recall that he was told that plaintiff complained of discrimination. (Doc. #75, Toll Dep. 123:23-124:16.) Dean Henry stated that Dr. McKinney did not mention discrimination, in any form, and did not tell her that plaintiff believed she was being discriminated against on the basis of race. (Doc. #72, Henry Dep. 229:12-18.)
If plaintiff reasonably believed, subjectively and objectively and in good faith, that her employer engaged in an unlawful employment practice in violation of Title VII, she can make a prima facie case of retaliation.
Accordingly, it is now
Defendant's Motion for Summary Judgment (Doc. #64) is