LANDYA McCAFFERTY, District Judge.
In a case that has been removed from the Rockingham County Superior Court, Roslyn Chavda, a former assistant professor at the University of New Hampshire ("UNH"),
"Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."
"The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists."
Roslyn Chavda is African American. From the fall semester of 2006 through the spring semester of 2012, she was employed by UNH as an assistant professor in the political science department ("department"). Her primary teaching responsibilities were in the department's Master of Public Administration ("MPA") program, which was directed by Dr. Mel Dubnick. He, in turn, had been a member of Chavda's dissertation committee in graduate school and was instrumental in bringing Chavda and her husband to UNH.
When Chavda was hired, UNH was in the midst of a hiring freeze. However, the department was able to get around the freeze, and hire Chavda, because of her race and UNH's ongoing efforts to enhance racial diversity on campus. The role of Chavda's race in her hiring was mentioned at the meeting where the faculty voted to hire her. When asked to explain what she meant by calling her race a "reference point" for her colleagues in the department, Chavda offered this clarification:
Def.'s Mem. of Law, Van Oot Aff., Ex. 1, Chavda Dep., Sept. 3, 2013 (doc. no. 10-16) 50:23-51:20. Later in her deposition, she reiterated the point: "I think the entire time that I've been at UNH, I had no idea how race factored into any of this. I had no idea how gender factored into it." Id. at 208:11-14.
When Chavda arrived on campus, she was pregnant with twins. Her pregnancy resulted in complications for both Chavda and her babies, including premature delivery. Those complications forced Chavda out of the classroom for several weeks, and her classes were covered by other faculty members, including her husband. In the spring of 2007, Chavda had a conversation with Dubnick concerning her pregnancy that she describes in the following way:
Chavda Dep. 90:11-91:5.
The terms of Chavda's employment were governed by a collective-bargaining agreement between the American Association of University Professors and UNH. Generally speaking, that agreement provided that non-tenured faculty members such as Chavda: (1) worked under renewable one-year appointments; and (2) were evaluated annually by their departments to assess their progress on the path toward tenure.
Chavda's appointment was renewed four times, based upon: (1) evaluations and recommendations from the department's promotion and tenure committee ("P&T Committee"); and (2) separate recommendations from the department's chair. In April of 2011, following the recommendations of both the P&T Committee (by a 7-1 vote), and the department's chair, UNH did not renew Chavda's appointment. Instead, it offered her a one-year terminal contract for the 2011-2012 academic year, thus removing her from the tenure track. The reasons given for that decision were her uneven performance as a teacher and her failure to publish a sufficient amount of peer-reviewed research. Chavda concedes that her publication record was considerably weaker than those of two other junior faculty members in the department, both women, who received tenure at about the same time she was removed from the tenure track. And, undisputed evidence from student evaluations confirms that Chavda's ratings were consistently lower than those of other similarly situated junior faculty members.
Based upon the foregoing, Chavda sued in four counts, asserting claims for race discrimination, gender discrimination, retaliation, and wrongful discharge.
In her surreply, Chavda concedes that UNH is entitled to judgment as a matter of law on the retaliation claim she asserted in Count III. Accordingly, the following discussion is limited to Chavda's discrimination claims (Counts I and II) and her claim for wrongful discharge (Count IV).
Chavda asserts claims for race discrimination (Count I) and gender discrimination (Count II) under both Title VII and RSA 354-A. "Because the New Hampshire Supreme Court relies on Title VII cases to analyze claims under RSA 354-A, the court will address [Chavda's state and federal] claims together using the Title VII standard."
In Count I, Chavda states her race-discrimination claim this way: "As a direct and proximate cause [sic] of her race, Dr. Chavda was subjected to a hostile environment and, ultimately, discharged." Compl. (doc. no. 1-1) ¶ 26. She states her gender-discrimination claim in a similar way. That is, Chavda claims that animus based upon her race and gender "created an attitude of hostility that, from the very outset of her employment, doomed her efforts to succeed." Pl.'s Mem. of Law (doc. no. 12-1) 10. In her objection to summary judgment, she describes that hostility as consisting of: (1) heightened scrutiny of her performance; and (2) assessments of her student evaluations that, in her view, unfairly failed to take into account the fact that the students she taught in the MPA program were more likely than other students to complain about their professors due to their own academic deficiencies. The principal forms of hostility she identifies in her deposition are the failures of her senior colleagues to: (1) give her advice on teaching; (2) invite her to write scholarly papers with them; or (3) tell her about publication opportunities that might be available to her. Her theory is that because the workplace hostility that precluded her from satisfying the requirements for earning tenure was based upon her race and gender, her removal from the tenure track was an act of race and gender discrimination. UNH is entitled to judgment as a matter of law on Chavda's discrimination claims.
As Chavda concedes, this is not a case that involves any acts of hostility that directly demonstrate race-based animus. Rather, she argues that "[u]nlike a hostile environment where racial epithets were hurled, or she was directly impugned due to her childbirth, the academics exercised their bias in the confines of the P&T Committee." Pl.'s Mem. of Law (doc. no. 12-1) 10. She elaborates: "[U]nlike the typical situation where those creating the hostile atmosphere at least have the courage to do so directly, these academics chose the cloistered deliberations of the P&T Committee to hurl their venom, then couch[ed] their `conclusions' in the antiseptic verbiage of the annual reviews, largely leaving Chavda to guess why her efforts to improve were fruitless."
First, Chavda has provided no legal support for her theory that a person can be harassed, for purposes of a hostile-workenvironment claim, by words or deeds of which she is entirely unaware. And, as a practical matter, it would appear all but impossible for Chavda to establish that race- or gender-based conduct by the P&T Committee that was hidden from her "was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and [that she] in fact did perceive it to be so,"
Second, Chavda has produced no evidence of any racial animus on the part of any of her colleagues in the political science department. She has produced evidence that her colleagues knew that the only reason the department was able to hire her was her race. But, she has not produced any evidence that any member of the department was displeased by the circumstances of Chavda's hiring or harbored any animosity toward African Americans specifically or people of color generally. Although she refers to "venom" hurled by her colleagues, the only venom of which she provides any evidence consists of comments about her deficiencies in teaching, scholarship, and interactions with colleagues in the department. And, while she has produced evidence that several of her colleagues harbored serious doubts about her competence long before she was removed from the tenure track, none of those internal P&T Committee communications give any indication that her colleagues harbored racial animus. Rather, they tend to mirror the "antiseptic verbiage of the annual reviews," Pl.'s Mem. of Law (doc. no 12-2) 13, that Chavda characterizes as camouflage for racial animus.
Finally, no reasonable jury could be persuaded by Chavda's disparate-treatment argument based upon the manner in which the P&T Committee treated her, as contrasted with the way it treated three white colleagues who were in approximately the same position on the tenure track. Of those three, the two who were granted tenure had: (1) publication records that were "head and shoulders better than [Chavda's]," Chavda Dep. 222:5-6; and (2) student evaluations that were substantially better than Chavda's,
Chavda' third purported comparator, Andrew Smith, was not granted tenure, which would appear to diminish his value as a comparator in a disparate-treatment argument where the adverse employment action was UNH's decision to remove Chavda from the tenure track. Chavda, however, identifies three differences in the way she was treated vis-à-vis Smith.
First, she argues that while the P&T Committee recommended that both she and Smith be removed from the tenure track, the committee subjected her performance to more scrutiny than Smith's. Because both Chavda and Smith had similarly thin records of scholarly research, and Smith, in fact, had stronger student evaluations, Chavda's differential-scrutiny argument goes nowhere. She also argues that Smith was given extra time at the end of his tenure clock, presumably to improve his record of scholarship. But, it is undisputed that she herself was given an extra year at the start of her tenure clock, so as not to penalize her for her difficult first year.
Finally, Chavda notes that after Smith left the tenure track, he continued to be employed by the political science department as a part-time, non-tenure-track, affiliated associate professor, and she was not. But, as to that bit of disparate treatment, Chavda and Smith were not similarly situated. Before and during his stint as a tenure-track assistant professor (which was also part-time), Smith was the director of the UNH Survey Center, and he continued in that position after he left the tenure track. Given that fact, Chavda and Smith were not situated similarly enough to turn Smith's appointment as an affiliated professor into evidence of racial bias against Chavda.
The bottom line is this. UNH is entitled to judgment as a matter of law on the race-discrimination claim Chavda asserts in Count I.
Count II stands on much the same footing as Count I. The only real difference is the conversation in which MPA director Mel Dubnick expressed his opinion that Chavda had "screwed everything up by getting pregnant." That comment is insufficient, by a wide margin, to establish that Chavda's removal from the tenure track was a result of gender discrimination. It was a single comment, made by a non-decisionmaker,
In sum, Chavda has failed to produce evidence from which a reasonable jury could conclude that her removal from the tenure track resulted from gender-based animus. Accordingly, UNH is entitled to judgment as a matter of law on the gender-discrimination claim Chavda asserts in Count II.
Count IV is Chavda's claim for wrongful discharge. The New Hampshire Supreme Court has recently described that cause of action:
The court begins by noting that in this case, Chavda had accepted an appointment that specified the duration of her employment, which calls into question her status as an at-will employee. Thus, it is not at all clear that a cause of action for wrongful discharge is even available to Chavda.
Count IV falters on the second element. In her complaint, Chavda asserts that her "termination by UNH was a direct and proximate result of her attempts to enforce academic standards and thereby improve UNH's MPA program, a policy encouraged by the State of New Hampshire." Compl. (doc. no. 1-1) ¶ 32. In an interrogatory answer, Chavda had this to say about the sources of the public policies underlying the second element of her wrongful-discharge claim:
Def.'s Mem. of Law, Van Oot Aff., Ex. 1, Chavda Dep., Ex. 4 (doc. no. 10-16), at 22. In response to UNH's argument that "[t]he status . . . of being a female employee who has given birth to a child, while protected by public policy (including Title VII and RSA 354-A), is not an act by an employee that will satisfy the `public policy' prong of a wrongful termination claim," Def.'s Mem. of Law (doc. no. 10-1) 26, Chavda makes the following argument:
Pl.'s Mem. of Law (doc. no. 12-1) 15;
There are several problems with Chavda's argument. First, despite having been asked to identify the sources of the public policies underlying her claim, Chavda asserts that procreation is an act encouraged by public policy, but offers no legal or other support for that assertion. Even assuming that procreation is an act supported by public policy, Chavda cannot demonstrate that she was discharged for giving birth to her twin children. On a purely temporal basis, no reasonable jury could conclude that UNH removed her from the tenure track, in 2011, because she gave birth in 2006. She was removed from the tenure track, by all accounts, for her shortcomings in teaching and scholarship. Moreover, Chavda does not even argue that those shortcomings resulted from her having given birth. Rather, she adds another link to the chain of causation, arguing that the academic record that served as the basis for her removal from the tenure track resulted, in one way or another, from negative perceptions of her among her colleagues which, in turn, resulted from her having given birth. That chain is far too long and far too weak to support a claim for wrongful discharge that a reasonable jury could resolve in Chavda's favor.
Because Chavda cannot demonstrate that she was discharged for giving birth, UNH is entitled to judgment as a matter of law on the wrongful-discharge claim she asserts in Count IV.
For the reasons detailed above, UNH is entitled to judgment as a matter of law on all three of Chavda's claims. Thus, its motion for summary judgment, document no. 10, is granted. The clerk of the court shall enter judgment in accordance with this order and close the case.
SO ORDERED.
