LEWIS A. KAPLAN, District Judge.
Plaintiff April Klein brings this action for employment discrimination under Title
Stern offers undergraduate and graduate programs in business and management education.
Klein accepted a full-time tenure track assistant professor position at Stern in 1989.
On September 14, 1998, Klein and other female members of the Stern faculty signed a memorandum titled "Representation of Women Faculty at the Stern School of Business" (the "1998 Memo") regarding alleged gender discrimination at Stern.
Following the 1998 Memo, Stern formed the Committee on the Role and Status of Women Faculty (the "Women's Committee"). The Women's Committee met periodically from September 1999 to April 2001. In April 2001, it published a report finding that female faculty members were: (1) "less satisfied with the work environment at Stern," (2) "less likely to report that they were treated with respect, that their ideas were valued, or that they had effective networks of support," and (3) mostly underpaid relative to male faculty members from 1999-2000 based on total compensation.
More than half of the female faculty members who signed the 1998 Memo, including Klein, who was promoted to full
In addition to the promotions and other appointments described above, each of the female faculty members who signed the 1998 Memo and still is employed at Stern, including Klein, subsequently received annual summer research support.
Stern assesses the performance of faculty members each year during an annual faculty merit review.
Each department has a "pool of money" available for merit raises.
Faculty members are eligible also for additional financial support for research through a separate process. Every three years, the dean's office accepts nominations, including self-nominations, for research professorships and faculty fellowships from department chairs and other individuals.
On May 10, 2005, chair Backus completed Klein's faculty merit review for the 2004-2005 academic year. She received ratings of 4.5 for research, 1.5 for teaching, and 1.5 for service and leadership, which translated into an overall rating of 3.0.
As a result of her faculty merit review, Klein received a three percent raise and
Backus completed Klein's faculty merit review for the 2005-2006 academic year on March 16, 2006. She received ratings of 4.25 for research, 2.25 for teaching, and 3.5 for service and leadership, which gave her an overall rating of 3.4. The evaluation referred to a notable publication in 2005, two other publications, and several working papers. It recognized also her (1) improved teaching based on her student evaluations, although it noted that her average still remained in the bottom ten percent of the Stern faculty, and (2) additional service activities, including the faculty grievance committee, coordinating Petrovits's review, senior recruiting, several editorial boards, and a AAA committee. The review summarized Klein's performance as: "[s]trong research, solid service, improving teaching."
In 2001, 2004, and 2007, Klein was nominated for a faculty fellowship but not selected by the dean.
A candidate seeking promotion at Stern first must notify the department chair, who then appoints a committee to evaluate the candidate and make a recommendation to the department's promotion and tenure committee.
In 2001, Klein applied for promotion to full professor along with two other accounting professors, Eli Bartov and Stephen Ryan. Bartov was promoted. Klein and Ryan were not.
In April 2006, Klein filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC").
During the 2006-2007 academic year, the University of Delaware offered Klein a position as a full professor and research head of a corporate governance institute with a salary of more than $200,000. She did not accept the offer or discuss it with anyone at Stern.
Alex Dontoh, associate professor and deputy chair of Klein's department, was responsible for assigning professors to teach courses after the entire schedule, including the specific courses and the days and times on which they would be taught, had been determined by the registrar's office.
During the 2005-2006 academic year, Klein was assigned to teach a course on financial accounting and reporting that was offered to MBA and non-MBA students.
For the following academic year, Dontoh assigned Klein to teach an undergraduate accounting principles course and two MBA courses.
Overall, however, Klein was satisfied with her teaching schedule for eight of the last ten semesters.
In 2003, Klein's department began a two-phase office move from the Tisch building to the KMC building, the second phase of which was completed in 2006.
Klein was scheduled to move from Tisch to KMC during the first phase. Upon receiving her KMC office assignment, she refused to accept it. Dontoh thereupon gave Klein his assigned office and took hers. He remained in the office that initially had been assigned to Klein until the second phase of the move.
When the second part of the renovation was complete, Klein asked for an office reassignment because the second phase offices were larger, received more light, and had better views, but Dontoh denied her request.
Klein and her family long have resided in university housing in a two-bedroom apartment. In April 1995, she requested a three-bedroom apartment because she planned to (and later did) have a second child.
In 2009, NYU offered Klein a three-bedroom apartment. Klein rejected the offer because, in her view, the apartment was "inferior" in size, finishing, appliances, and the bathroom to her two-bedroom apartment.
Klein claims that NYU discriminated against her because of her gender by (1) denying her 2001 application for promotion to full professor, (2) not awarding her faculty fellowships or research professorships, (3) assigning her unreasonable and unfavorable teaching schedules, (4) denying her requests for different offices, (5) denying her requests for a three-bedroom apartment, (6) giving her unfavorable performance evaluations in 2004 and 2005, (7) giving her an unfavorable senior faculty peer review committee report, (8) denying her request to teach a Ph.D. level course, (9) asking her to resign, (10) not promoting her to full professor until her second application in 2009, and (11) paying her less than similarly situated male faculty members.
NYU contends that Klein has not made out a prima facie case of employment discrimination because she has not offered evidence of an adverse employment action within the period for which the statute of limitations has not run. It argues also that Klein's equal pay claim would fail, even if she had made out a prima facie case, because any differences in salary can be explained by merit and factors other than gender.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Summary judgment in an employment discrimination case may be appropriate if the plaintiff's claims rest "on conclusory allegations of discrimination and the employer provides a legitimate rationale for its conduct."
It is unlawful for an employer to discriminate against an employee because of the employee's race, color, religion, sex, or national origin.
The Court considers Klein's disparate treatment claims under the familiar McDonnell Douglas framework. The plaintiff first must make out a prima facie case of discrimination. If the plaintiff succeeds, the burden of production shifts to the defendant, which must articulate a legitimate, non-discriminatory reason for taking any adverse employment action. If the defendant carries that burden, the burden shifts back to the plaintiff to adduce, at the third step, admissible evidence sufficient to support a finding that the defendant's proffered and legitimate reason is in fact pretext for unlawful discrimination.
To make out a prima facie case of discrimination, the plaintiff must offer evidence that if believed, would demonstrate that: (1) she was a member of a protected class, (2) she was qualified for the position held, (3) she was subject to an adverse employment action, and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination.
An adverse employment action is a "materially adverse change in the terms and conditions of employment" that "must be more disruptive than a mere inconvenience or an alteration of job responsibilities."
In this case, Klein has failed to make out a prima facie case of discrimination. Several of the actions of which Klein complains are time-barred, including her allegation regarding NYU's failure to promote her to full professor in 2001. The actions that do fall within the applicable limitations period do not satisfy the third element because they were not adverse employment actions. Even if they were, there is no evidence that they occurred in circumstances giving rise to an inference of discrimination. The Court addresses each below.
Klein filed her charge of discrimination with the EEOC on April 17, 2006. She therefore may not obtain relief for actions that occurred more than 300 days prior to that filing, i.e., before June 21, 2005.
Klein contends that NYU discriminated against her by dissuading her in 2007 from applying for promotion to full professor and not promoting her until she applied for promotion again in 2009. To make out a prima facie case of discriminatory failure to promote, the plaintiff must offer evidence that if believed, would establish "that she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion."
Klein applied for promotion to full professor on two occasions, once in 2001 and again in 2009. Any claim for relief with respect to Klein's 2001 application is time-barred for reasons explained above. When Klein applied for promotion again in 2009, she was promoted to full professor.
Klein argues that she should have been promoted in 2007, along with Ryan and Zarowin. She asserts that Choi suggested that she not apply for promotion because of "the pervasive attitude and history of sex discrimination in the Department meant that her chances of being promoted at the same time two male candidates were under consideration for promotion were remote."
As there is no evidence that Choi or others dissuaded Klein from applying for promotion with a discriminatory intent, Klein has not made out a claim for failure to promote. The only actual application for which relief is not time-barred was granted.
Klein asserts that NYU repeatedly denied her requests for a three-bedroom apartment or other similar accommodation to her university-subsidized housing. NYU disagrees, arguing that there is no evidence that the denial of Klein's requests impacted the terms and conditions of her employment, that she refused new housing options when they were offered in 2008 and 2009, and in any event, that there is no evidence that similarly situated male professors received housing benefits when Klein did not.
An adverse employment action must involve a "materially adverse change in the terms and conditions of employment" that is "more disruptive than a mere inconvenience."
In Klein's case, the Court accepts arguendo that denial of her request for a third bedroom, in the context of academia and the New York real estate market, could be found to be an adverse employment action. There is significant value associated with a third bedroom, and university-subsidized housing has been part of the terms and conditions of Klein's employment for nearly all of her career at Stern. But that does not get Klein where she wants to go.
Klein has offered no evidence sufficient to show that her request was denied in circumstances giving rise to an inference of discrimination. Although Klein repeatedly was told that there was limited availability of three-bedroom apartments in the University housing system as a basis for the denials of her requests,
Klein alleges also that she was a victim of disparate treatment in that she (1) received negative performance evaluations, (2) was not awarded faculty fellowships or research professorships, (3) was assigned an unfavorable teaching schedule, and (4) received a poor office assignment. The same standards that apply to her promotion and housing claims are applicable here.
As the parties agree that Klein was a member of a protected class and was qualified to be an associate professor, only the third and fourth elements of a prima facie case are at issue — whether Klein was subjected to an adverse employment action and whether any such action occurred in circumstances giving rise to an inference of discrimination.
Klein acknowledges that some of her remaining claims rest on actions that seem to be "trivial slights or inconveniences when considered alone."
Although the remaining actions may have posed more than a mere inconvenience, at least subjectively, she has not offered evidence that would permit a finding that her claims rise — either individually or collectively — to the level of a material alteration of job status or responsibilities such as termination, demotion, or some other material loss of benefits. Nor has Klein offered any evidence demonstrating that these events occurred in circumstances giving rise to an inference of discrimination.
The Court addresses each below.
Klein asserts that she received performance evaluations in 2005
Klein received the 2005 evaluation before June 21, 2005, so it concededly cannot be the subject of relief. The Peer Review Committee report did not impact her salary or other benefits.
A negative performance evaluation must impact the terms and conditions of employment to be considered an adverse employment action.
Klein's 2006 evaluation recognized her notable publication and her AAA award from the prior year. It noted also her improved teaching ratings and increased involvement in activities both inside and outside of Stern. She received (1) a salary increase of 5.36 percent, which was greater than the 3.00 percent raise that she had received the year before, and (2) summer research support equal to two-ninths of her annual salary. She has offered no evidence that this performance evaluation materially disadvantaged her in any way. To the contrary, it led to material benefits, including a raise and summer research funding. Thus, Klein's 2006 evaluation was not an adverse employment action.
Even if the 2006 evaluation had been an adverse employment action, there is nothing from which to infer that it reflected any invidious discrimination. Klein's highest rating was in the research category — the category over which her department chair had the most control. Her overall evaluation was hurt by student course evaluations and her own limited participation in activities both inside and outside of Stern.
Klein maintains that she was not selected for a faculty fellowship or research professorship, an award or position that would have included a more prestigious title and guaranteed additional support for multiple years. But, like Klein's negative performance evaluation claim, this claim cannot be considered in isolation.
In the period for which the statute of limitations has not run, Klein was nominated for, but was not awarded, a faculty fellowship in 2007. She asserts further that she was not given other research funds when they became available in 2006 and 2008. During this same period, however, Klein received summer research support, the equivalent of two-ninths of her salary — the same amount that she would have received as a faculty fellow or research professor. That summer research support, although not awarded with a three-year guarantee as with a faculty fellowship or research professorship, was renewed each year. Thus, Klein received the same economic benefits that she would have received if she had been selected for a faculty fellowship or research professorship. The only difference was a title, and there is no evidence that the lack of the title materially impacted Klein's conditions of employment.
Klein contends that she received unfavorable teaching schedules and was not allowed to teach a Ph.D.-level course. Her claim relies on schedules for only two semesters over a lengthy career at Stern. She argues that the schedules were unfavorable due to the timing and student composition of the courses.
A university professor's dissatisfaction with course assignments when he or she "does not allege any resulting loss in wages" is not an adverse employment action.
Klein's allegations regarding a Ph.D.-level course are insufficient on the same ground. Ph.D.-level courses at Stern are considered part of a professor's regular teaching load. A faculty member does not receive a salary increase for teaching such a course unless it exceeds his or her regular teaching load.
Even if Klein's discontent with her teaching schedule were an adverse employment action, there is no evidence that her assignments were made in circumstances giving rise to an inference of discrimination. To the contrary, Dontoh, granted Klein's request not to teach morning classes to allow her to take her children to school. She testified that, on at least one other occasion, Dontoh was "very accommodating" in addressing her concerns regarding her teaching schedule.
Finally, Klein asserts that she received an unsatisfactory office assignment when the department moved from the Tisch building to the KMC building. Offices in the new building, however, were assigned in the same configuration that existed in the previous building with two exceptions based on seniority. When Klein, expressing her dissatisfaction with her assignment like several other professors, flatly refused to accept her assignment, Dontoh gave Klein his own office. Klein maintains still that given her initial dissatisfaction and the higher quality of other offices, she should have been given a new assignment.
Undesired office assignments are not adverse employment actions.
Klein alleges also that many of the actions referred to above were taken in retaliation for her signing of the 1998 Memo and filing her EEOC charges and this lawsuit.
The Court considers retaliation claims under the same McDonnell Douglas burden shifting framework. The elements of a prima facie case differ. The plaintiff must show that (1) she participated in a protected activity, (2) the employer
Several of the alleged acts of retaliation are not eligible for relief. The same statute of limitations for Klein's disparate treatment claims applies here. Therefore, relief with respect to the following allegations is time-barred: (1) denial of promotion in 2001, (2) failure to receive a faculty fellowship or research professorship in 2001 and 2004, (3) unfavorable senior faculty peer review report, (4) request to resign in 2005, and (5) unfavorable faculty review report for the 2004-2005 academic year.
The Court assumes that Klein participated in protected activities — signing the 1998 Memo and filing EEOC charges and this lawsuit — and that NYU was aware of her participation in all of the activities. Only the third and fourth elements of a prima facie case for retaliation are at issue for each of the remaining claims.
Klein asserts, based on the same facts as her disparate treatment claim, that NYU retaliated against her by not promoting her until 2009. Her own deposition testimony, however, undermines her position. Klein testified that Choi was supportive of her promotion process and did not retaliate or discriminate against her in any manner.
Even assuming arguendo that Klein's promotion process could be considered to have been materially adverse, there is no evidence to support a causal connection between the protected activities and the promotion-related advice that Choi gave Klein. The evidence that is available indicates that other female professors who signed the same memorandum later received promotions and went on to have
In addition to delaying her promotion, Klein alleges that NYU retaliated against her by assigning an unfavorable office and teaching schedules and denying her residential housing requests. These remaining claims are not materially adverse actions in the retaliation context. Even if they were, there is no evidence of a causal connection between Klein's protected activities and those actions.
First, the fact that Dontoh did not reassign Klein to a new office is not a materially adverse action because there is no evidence that Klein was injured or harmed by not receiving better lighting or improved views. Nor has Klein offered any evidence that Dontoh's assignment was in any way connected to the 1998 Memo or the events related to this lawsuit.
Second, Klein's mere dissatisfaction with her teaching schedule is not sufficient to support a finding of a material adverse action. Faculty members, both male and female, objected to their schedules, and even Klein was satisfied for eight of the last ten semesters. Such dissatisfaction would not dissuade a reasonable employee from bringing a charge of discrimination. Moreover, there is no evidence of injury or harm beyond Klein's assertion that teaching on Thursday evening during one semester limited her travel schedule for presentations nor evidence of a causal connection between the course assignments and her protected activities.
Finally, even assuming that denial of Klein's housing requests were materially adverse actions, there is no evidence supporting a causal connection between Klein's protected activity and NYU's refusal to offer Klein a three-bedroom apartment. The evidence indicates simply that there has been an extremely tight market for three-bedroom apartments in the university housing system, Klein was under consideration along with other similarly situated professors for a housing upgrade, and she was provided with additional housing options when they became available.
Even considering Klein's claims in aggregate, she fails to offer evidence of a materially adverse action that is causally connected to her protected activities. Klein may not have been satisfied with aspects of her employment at NYU, but dissatisfaction alone is not sufficient to allege a material adverse action for retaliation. Klein has failed to make out a prima facie case for retaliation.
Finally, Klein alleges that she was underpaid relative to three male accounting professors: Bartov, Ryan, and Zarowin (the "comparators") in violation of the Equal Pay Act.
To make out a prima facie case of discrimination under the EPA, a plaintiff must show that the (1) employer paid lower wages to employees of the opposite sex, (2) the relevant employees performed "equal work on jobs the performance of which requires equal skill, effort, and responsibility," and (3) the jobs were performed in similar working conditions.
Klein has made out a prima facie case under the EPA. Klein was paid less than each of the comparators.
NYU asserts that the pay disparity can be explained by seniority or merit. Through the declaration of Professor Walter, NYU offers evidence of its compensation policy along with the professional records of Klein and the comparators. Klein argues that Walter's declaration is insufficient and should be rejected as speculation because Walter had no role in or knowledge of how merit increases were determined until 2008.
NYU does not use purely objective or quantitative evidence to determine faculty raises. Rather, half of a professor's evaluation depends on subjective assessments of his or her research, publication record, and what qualifies as a top-tier journal. The other factors taken into consideration arguably are evaluated selectively including student evaluations and service and leadership both inside and outside of Stern. The faculty activity reports and resumes of Bartov, Ryan, and Zarowin may demonstrate that they had publication records that differed from Klein's or other attributes, warranting higher salary increases. But Walter's declaration alone is not sufficient to rule out Klein's theory that she would have received comparable pay but for her gender. He was not involved in deciding merit increases until 2008, and there is no other evidence about how merit increases actually were determined. This issue therefore cannot be decided on the current record.
For the foregoing reasons, the defendant's motion for summary judgment [DI 41] is granted to the extent that all of the plaintiff's claims, except for her Equal Pay Act claim, are dismissed.
SO ORDERED.
