MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendants’ Motion for Summary Judgment Regarding Retaliatory Discharge, filed December 10,1999 [Doc. No. 53]. The Court, having considered the briefs, relevant law and being otherwise fully informed, finds that the Motion for Summary Judgment is not well taken and will be DENIED as explained below.
FACTUAL BACKGROUND
The Court finds the following material facts to be undisputed: 1
1. Plaintiff Sandra Lee was employed by the New Mexico State University (NMSU) at its Dona Ana Branch Community College (DABCC) as an assistant professor teaching English in the Developmental Studies Division.
2. Plaintiff was placed on a tenure track position calling for annual reviews
3. For the first three years of her employment, Plaintiff was under the supervision of the Developmental Studies Division Head, Monica Torres. On the annual supervisor’s evaluations for the first three years of tenure review (1989, 1990, 1991) Plaintiff met all 28 evaluated standards, exceeded standards on three rating categories, and was not rated as needing improvement in any category.
4. Commencing in 1992, Plaintiff was under the supervision of Ann Rehovec, the new Developmental Studies Division Head. That year Plaintiff was rated by Ms. Reho-vec as meeting standards in all 28 evaluation categories and exceeding standards in five categories. She was not rated as needing improvement in any category. As to concerns, the evaluation noted “none at this time.” In the 1993 annual review performed by Ms. Rehovec, Plaintiff was rated as meeting standards in 24 categories, exceeding standards in 4 categories and needing improvements in no categories.
5. The performance evaluation form states “[s]upervisor will provide narrative comments addressing strengths and weaknesses in the area of teaching, professional service and other service. Areas of concern must be accompanied by relevant suggestions for improvement.” In 1989, then-supervisor Monica Torres suggested that Plaintiff “get additional training in composition theory and practice” and “develop workshops ... to disseminate information to her peers.” In 1990, Monica Torres suggested that Plaintiff participate in activities aimed at composition theory and collaborative learning. In 1991, Monica Torres suggested that Plaintiff attend a national conference. In 1992, the recommendation to attend a national conference in Plaintiffs discipline was again raised. There is a dispute of fact as to whether or not Plaintiff complied with or heeded the recommendations and suggestions. For instance, in response to the 1989 recommendation to “get additional training in composition theory and practice,” Plaintiff subsequently took several courses which she alleges concentrated heavily on the theories and practices of composition pedagogy. Defendants dispute that the courses taken by Plaintiff adequately focused on composition pedagogy. Plaintiff also states that she did not attend national conferences in 1991 and 1992 due to the demands of raising a small child. She did, however, attend a national conference in 1994. With regard to Defendants’ contention that Plaintiff did not work actively with her peers and colleagues, Plaintiff was commended in several of her annual recommendations for her active involvement in professional associations. Plaintiff was also praised for her favorable student evaluations, her instructional skills and the innovative collaborative learning techniques she was utilizing in the classroom.
6. In August 1994, a position for an English Coordinator opened up at DABCC. Two males were interviewed for the position including the successful candidate, Dr. Aubrey Kline. Plaintiff was not offered an interview for the position, although she contends that she was at least as qualified as one of the candidates interviewed. She allegedly was informed by her supervisor Ms. Rehovec that enough women faculty were employed in coordinator positions. Plaintiff concedes that the candidate ultimately chosen had superior credentials to her own.
7. In September 1994, Plaintiff filed an EEOC complaint alleging gender discrimination for the failure to interview her for the English Coordinator position. No claims were pursued by Plaintiff or the EEOC regarding the alleged gender discrimination.
8. After filing the 1994 EEOC charge, Plaintiff alleges that she was subject to a series of retaliatory actions by her supervisor, Ms. Rehovec. Specifically, Plaintiff alleges that she was subject to heightened scrutiny by her supervisor and others, differential treatment and unfair criticism. The retaliation eventually culminated in a
9. Within days of the EEOC filing, Ms. Rehovec ordered that Plaintiffs student papers be shredded, contravening standard university practice of letting the papers remain for the academic year. Plaintiff also alleges that she was subject to heightened supervision following the filing of the EEOC charge. Ms. Rehovec began documenting the times when Plaintiff missed or was late to a meeting. In December, 1994, when Plaintiff missed a meeting due to commitments at a prison project facilitated by the university, Ms. Rehovec requested verification that Plaintiff was indeed unavoidably delayed at the prison. Ms. Rehovec also began questioning Plaintiffs teaching assignments at the prison, noting scheduling difficulties despite the fact that the schedule had previously been approved by Ms. Rehovec. No other employee was subject to similar treatment.
10. In the 1994 Annual Faculty Performance Report completed by Ms. Rehovec, Plaintiff was rated as meeting standards in 22 categories, exceeding standards in three categories, and for the first time, needing improvement in two categories. 2 In addition, the 1994 evaluation completed by Ms. Rehovec raised a number of criticisms going back to 1989 — a time when Ms. Rehovec was not employed as Plaintiffs supervisor. Ms. Rehovec compiled this evaluation by reviewing Plaintiffs past evaluations. There is a dispute of fact whether the suggestions and recommendations raised in these past evaluations had been fully addressed by Plaintiff. No other employee received an annual evaluation which engaged in this scrutiny of past evaluations.
11. After receiving a draft of the 1994 evaluation, Plaintiff filed a second EEOC charge claiming retaliation for filing the initial EEOC charge. The matter of the 1994 evaluation was taken to mediation. Plaintiff pointed out that while Ms. Reho-vec had referenced the prior annual evaluations, she had not reviewed Plaintiffs responses addressing the concerns raised in those evaluations. As a result of the mediation the evaluation was eventually amended to be more favorable to Plaintiff. Nonetheless, the “needs improvement” rating in two categories remained.
12. Following the filing of her second EEOC charge, Plaintiff was subject to even closer supervision as demonstrated by a series of memoranda and notes documenting the times when Plaintiff was moments late for a meeting, left a meeting for a few minutes or was absent from a meeting. Such documentation was kept in a special file. For example, on March 9, 1995, Ms. Rehovec created a memorandum stating “example of habit Ms. Lee has of having class during meeting time: 4 trips to room 7: in a two-hour class period.” Some of Plaintiffs co-workers were also asked by Ms. Rehovec to give informal evaluations of Plaintiff. Notwithstanding this close monitoring, Plaintiffs attendance was comparable to that of her fellow employees.'
13. Plaintiff also alleges that Ms. Reho-vec retaliated by submitting incomplete transcripts to Professor Dasenbrock when asking him to evaluate Plaintiffs qualifications to teach a certain English class. Based upon the incomplete transcripts, Professor Dasenbrock wrote a memorandum concluding that Plaintiff was not qualified to teach the English course. This document was later used by Ms. Rehovec as evidence of Plaintiffs inadequate qualifications.
14. Under the tenure recommendation and review process at NMSU and DABCC, a tenure applicant must go through several stages of review. First, the applicant’s direct supervisor (Ann Re-
15. In each year between 1989 and 1994, the P & T Committee had rated Plaintiff as meeting all standards toward a grant of tenure. In 1995, when Plaintiff came up for, tenure review, the P & T Committee unanimously recommended in favor of tenure.
16. On October 8, 1995, Ms. Rehovec gave Plaintiff a negative tenure recommendation. Ms. Rehovec had circumvented the normal university tenure procedures by issuing this recommendation to the P & T Committee without giving Plaintiff an opportunity to respond. Plaintiff did not receive a copy of this negative recommendation until three months later. The negative tenure recommendation alleged (1) Plaintiff lacked focused direction in professional development; (2) Plaintiff had not demonstrated improved instruction performance; (3) Plaintiff did not heed recommendations to improve herself in the area of composition pedagogy; (4) Plaintiffs contributions and attendance in the area of community service were uneven and sporadic. Plaintiff disputes the substance of these allegations.
17. According to one P & T Committee member, the P & T Committee was surprised to see a negative tenure recommendation because over the six years of annual reviews, there was no indication that a negative tenure decision was possible. The Committee was also surprised to see the negative recommendation without a rebuttal having been filed by Plaintiff. The Committee assumed that Plaintiff had chosen not to reply to the negative allegations.
18. The P & T Committee carefully scrutinized the grounds enumerated in Ms. Rehovec negative tenure recommendation, considered a rebuttal eventually submitted by Ms. Lee and concluded that Ms. Reho-vee’s assessment was totally groundless. For example, with regard to Ms. Rehovec’s allegation that Plaintiff had not heeded recommendations to get additional training in composition theory and practice, one Committee member observed that Plaintiff had among the strongest backgrounds in rhetorical composition of all the faculty. After this review, the P & T Committee again recommended tenure for Plaintiff. The second P & T Committee recommendation contained a provision designed to address what the Committee perceived to be ongoing personality differences between Ms. Rehovec and Plaintiff.
19. On February 23, 1996, upon receiving the negative tenure recommendation of Ms. Rehovec and the two positive tenure recommendations from the P & T Committee, Dr. McLaughlin, the Campus Director, wrote a negative tenure recommendation advising against tenure for Plaintiff. In the recommendation Dr. McLaughlin stated, “I have seen an unwillingness on the part of Ms. Lee to recognize the need for or accept the professional development recommendations made by two successive division heads.” Dr. McLaughlin added “Documentation of substantial levels of contribution or leadership is lacking.... Reports to me from key project leaders on the Title III team suggest that her contributions were minimal and not consistent with the level of effort and expectation of a tenurable faculty member.” In his testimony at a state court trial, Dr. McLaughlin emphasized that he was particularly concerned with the recommendations to gain “additional expertise in the pedagogy of how to teach composition” made by the
20. Dr. McLaughlin indicated in his trial testimony that he placed the reeommen-' dation of the Ms. Rehovec above the recommendation of the P & T Committee because the division heads are “subject matter experts” and “we did not have many developmental English people who were eligible to sit on the Promotion and Tenure Committee because they were not tenured.” However, one member of the P & T Committee noted that although P & T recommendations are non-binding they are generally considered among the strongest recommendations in the tenure process.
21. The Dean of the College of Humanity and Community Services, Virginia Hig-bie also recommended against tenure based upon “insufficient evidence of continuous progress over the probationary period” and a concern regarding Plaintiffs “consistent meaningful contribution to committee work and projects at the college level.”
22. After the negative recommendations by Ms. Rehovec, Dr. McLaughlin and Dean Higbie, Plaintiff also received negative recommendations against tenure from the Executive Vice-President and the NMSU President. Plaintiff was notified on March 20, 1996 that her application for tenure had been denied and that her contract would not be renewed beyond May 1997.
23. Plaintiff filed an appeal from the denial of tenure before the Appeals Board. Plaintiff submitted a grievance memorandum which documented the reasons justifying tenure. Although Plaintiff did not mention the September 1, 1994 EEO.C filing in her grievance memorandum to the Appeals Board, there was other documentation of the filing in the materials reviewed by the Board. As part of its review, the Appeals Board consulted Dr. McLaughlin who again recommended against tenure. After conducting a review, the Appeals Board determined that there was no procedural error justifying reversal of the decision to deny tenure. The Board of Appeals denies that its decision was influenced in any manner by Plaintiffs EEOC claims.
24. In February 1997, Dr. Aubrey Kline, the English Department Coordinator who worked with Plaintiff on a daily basis, wrote a letter to the DABCC administration commenting on what he perceived to be differential treatment of Plaintiff. Specifically, Dr. Kline observed that Ms. Rehovec unfairly criticized Plaintiff, as well as unfairly targeted her absences from departmental meetings despite that fact that Plaintiffs attendance was better than at least two other faculty members. Dr. Kline also observed that Plaintiffs students had among the highest exit exam pass rates. Dr. Kline noted that on numerous occasions, Ms. Rehovec requested unofficial information about Plaintiffs performance. It is Dr. Kline’s opinion that Plaintiff should have been granted tenure — an opinion which he had previously shared with Ms. Rehovec.
25. Plaintiffs expert witness, Dr. David Harris, a professional educator, has made the following conclusions: (1) there is a lack of necessary and sufficient evidence to support he denial of tenure; (2) there are violations of the university’s policies and procedure manual; (3) the P & T Committee recommendations were not given adequate weight based on national standards; (4) the annual evaluations show that Plaintiff was making normal progress toward tenure.
26. Plaintiff also claims she was subject to an adverse rate of pay action. During Plaintiffs final year of teaching, after her denial of tenure, Plaintiff received a 1.35% pay raise, while all other instructors received a 2% pay raise. Plaintiff eventually arrived at an agreement with Dr. McLaughlin whereby she would receive a 1.75% pay increase. 3
28. Plaintiff filed a complaint for breach of contract and violation of civil rights in state district court on June 16, 1997. Defendants removed the entire action to federal court on July 14, 1997. The Court subsequently remanded the breach of contract claim to the state district court, and retained jurisdiction over the Title VII claims and the state civil rights claims arising under the New Mexico Human Rights Act. All proceedings in the federal court action were stayed pending the outcome of the state court proceeding. After a state court trial in May 1999 the jury found against Plaintiff on her breach of contract claims.
LEGAL STANDARD OF REVIEW
Summary judgment is an integral part of the Federal Rules of Civil Procedure, which are intended to “ ‘secure the just, speedy and inexpensive determination of every action.’”
Celotex Corp. v. Catrett,
The movant bears the initial burden of showing “there is an absence of evidence to support the nonmoving party’s case.”
Bacchus Indus., Inc. v. Arvin Indus., Inc.,
Although the material submitted by the parties in support of and in opposition to the motion must be construed liberally in favor of the party opposing the motion,
Harsha v. United States,
DISCUSSION
Section 704(a) of Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any employee “... because he has opposed any practice made an unlawful employment practice by this [title] _” 42 U.S.C. § 2000e-3(a). In order to establish a prima facie violation of retaliation pursuant to § 704(a) the plaintiff must demonstrate that there was (1) protected opposition to Title VII discrimination or participation in a Title VII proceeding; (2) adverse action by the employer subsequent to or contemporaneous with such employee activities;
Defendants move for summary judgment on the grounds that (1) Plaintiff has failed to meet her burden of proving each element of a prima facie case of retaliation under Title VII; (2) Defendants have offered a legitimate non-discriminatory justification for her tenure denial; and (3) Defendants’ articulated reasons for the tenure denial cannot be shown to be mere pretext for retaliation.
At the outset, Defendants urge the Court to grant the motion for summary judgment on the grounds that courts should exercise restraint in reviewing tenure decisions due to the subjective and discretionary nature of the academic institute’s decision. While it is true that many courts have been reluctant to scrutinize academic tenure decisions, universities are by no means immune from the mandates of Title VII or anti-discrimination laws.
See Carlile v. South Routt School Dish RE-3J,
A. Prima Facie Case of Retaliation Under Title VII
1. Protected Opposition to Title VII Violation
Defendants argue that Plaintiffs initial EEOC claim does not constitute “protected opposition” because there was no underlying Title VII violation. However, Plaintiffs opposition is protected even if she was not successful in prosecuting her original discrimination charge or if the Defendants’ practice did “not actually violate Title VII.”
Dey v. Colt Const. & Development Co.,
Here, Defendants argue that the conduct alleged by Plaintiff underlying her initial EEOC charge does not rise to the level of a violation of Title VII. Rather,
2. Adverse Employment Action
The Tenth Circuit has given a liberal definition to “adverse employment action.”
See Gunnell v. Utah Valley State College,
In contrast, “not everything that makes an employee unhappy qualifies as retaliation, for otherwise, minor and even trivial employment actions ... would form the basis of discrimination.”
Sanchez,
Plaintiff has alleged a number of adverse actions, including the sudden shredding of her student papers, the heightened monitoring as demonstrated by the file documenting her attendance at departmental meetings, the 1994 negative annual performance evaluation, Ms. Rehovec’s negative tenure evaluation, the denial of tenure, the adverse rate of pay, and-the termination of her employment contract. Clearly the negative tenure recommendation, the denial of tenure and the termination of her employment contract are adverse employment actions that directly affected Plaintiffs “status as an employee.”
Heno,
In contrast, the shredding of the student papers do not constitute adverse employment action since there is no evidence suggesting that this action altered the terms, conditions or privileges of Plaintiffs employment. Rather, the shredded papers are more akin to a “mere inconvenience” and demonstrative of a tense work environment which the Tenth Circuit has held is not actionable under a Title VII retaliation claim.
See Heno,
3. Causal Connection
Close temporal proximity between the employee’s complaint and the employer’s adverse action is a factor in determining whether the employer’s proffered reason is a pretext for retaliation.
See Pastran v. K-Mart,
Defendants argue that the temporal gap between Plaintiffs protected opposition and the complained of adverse actions is too great to support a finding of causation. It is true that a few months passed between the September 1994 EEOC charge and the adverse actions complained of by Plaintiff. However, notwithstanding this temporal gap, the Court finds that there is sufficient additional evidence supporting a finding of causation. Although not all of the actions complained of by Plaintiff constitute “adverse employment action,” the Court finds that they are relevant to proving causation in this case. Almost immediately after filing the EEOC complaint in September 1994, Plaintiff was subject to a pattern of retaliatory actions.
See Marx,
2. Legitimate Non-Discriminatory Reason for the Adverse Action and Evidence of Pretext
Plaintiff having established a prima facie case of retaliation, the burden of production now shifts to Defendants to proffer a legitimate non-discriminatory reason for the adverse employment action. Defendants focus exclusively on the denial of tenure and Plaintiffs termination, arguing that these actions were justified by Plaintiffs poor work performance. Defendants argue that despite the satisfactory annual reviews, Plaintiff did not meet the standards required for a tenured professor. Specifically, Defendants contend that Plaintiff demonstrated poor professional development, lack of background in compositional theory and practice, poor instructional skills, and a lack of contribution or leadership in community services.
Plaintiff in turn argues that these proffered justifications lack basis in fact and are merely a pretext for retaliation. A plaintiff demonstrates pretext by showing either “that a discriminatory reason more likely motivated the employer or ... that the employer’s proffered explanation is unworthy of belief.”
Rea v. Martin Marietta Corp.,
In combination with the temporal proximity of the pattern of retaliatory actions, the evidence—although not conclusive—raises an issue of material fact as to whether Defendants offered a pretextual reason for denying tenure to Plaintiff. Plaintiff offers much evidence which tends to show that her employer acted with a retaliatory motive. Although Defendants cite Plaintiffs poor work performance as the primary justification for the denial of tenure, the credibility of this proffered motive has been challenged sufficiently for Plaintiff to survive summary judgment. First, there is genuine grounds for dispute as to whether the grounds cited for the denial of tenure were indeed justified. In the 1994 annual evaluation, Ms. Rehovec cited Plaintiff for a lack of pedagogy in composition theory and practice. This concern was echoed in Ms. Rehovec’s negative tenure evaluation, as well as the negative tenure recommendations of Dr. McLaughlin and Dean Higbie. However, in her rebuttal to the 1994 annual evaluation, Plaintiff points out several courses
Plaintiff has also offered evidence demonstrating procedural irregularities which suggest a retaliatory motive. The most clear violation of university procedure is that Ms. Rehovec placed her negative tenure recommendation in Plaintiffs tenure application notebook without first providing the recommendation to Plaintiff so that she may have an opportunity to submit a rebuttal. In fact it was not until three months later that Plaintiff obtained a copy of the negative tenure recommendation. The P & T Committee was especially surprised to see the negative tenure recommendation without a rebuttal from the tenure applicant, and assumed that Plaintiff had chosen not to respond. Although, ultimately the P & T Committee rejected the negative recommendation, Ms. Rehovec’s divergence of university procedure suggests that she was attempting to deprive Plaintiff of a fair tenure application process due to a retaliatory motive. Even more telling, one member. of the P & T Committee attests that although the P & T recommendation is non-binding, it is generally considered the “strongest” recommendation of the tenure process. Dr. Harris also asserts that P & T Committee decisions are typically awarded more deference than was given in Plaintiffs case. The fact that it was quite unusual for the faculty and administration to give so little deference to the P & T Committee’s unanimous recommendation undermines Dr. McLaughlin’s assertion that the opinion of Ms. Rehovec was far more important to him than that of the P & T Committee.
The Defendants’ proffered reasons for denying tenure to Plaintiff are inconsistent with past evaluations she received during the course of her employment, thus giving rise to an inference of pretext.
See Strother,
Additional evidence of pretext is demonstrated by the heightened scrutiny and differential treatment to which Plaintiff was subjected. Subsequent to filing the initial 1994 EEOC charge, Ms. Rehovec began keeping a special folder documenting Plaintiffs -attendance at departmental meetings, despite evidence suggesting that her attendance was comparable to that of other faculty members. Ms. Rehovec also asked other faculty members for negative feedback regarding Plaintiff, a practice which was not applied universally. Dr. Kline notified the administration of the differential treatment subjected on Plaintiff in that Ms. Rehovec intensely scrutinized Plaintiffs work and sought addition negative input from the faculty. In addition, Plaintiffs student papers were shredded in divergence form departmental procedure. Such heightened scrutiny and differential treatment indicates that Ms. Rehovec was acting out of a retaliatory mind set and intended to create a difficult work environment for Plaintiff.
Defendants erroneously assert that all of the faculty members involved in her denial of tenure would have to possess some retaliatory motive in order for Plaintiff to prove pretext. However, under the facts of this case it is clear 'that the negative tenure recommendation of Ms. Rehovec had repercussions throughout the entire tenure process and tainted Plaintiffs application. It appears to the Court that the concerns voiced by Ms. Rehovec were essentially ratified by the remainder of the tenure review faculty, without scrutiny of the factual basis underlying the negative assessment of Plaintiffs qualifications. Moreover, the Appeals Board appears to have focused exclusively on procedural irregularities that occurred during the tenure review process, rather than on the merits of Plaintiffs tenure qualifications. Thus, it is evident that once the negative tenure recommendation was made, it adversely influenced the entire application process. Plaintiff has demonstrated that there is a genuine issue of material fact as to whether the negative recommendation was retaliatory and whether the proffered justification for the denial of Plaintiffs tenure application were in fact pretextual. As such, she has sustained her burden of proof, rendering summary judgment in favor of Defendants inappropriate.
CONCLUSION
The Court is satisfied that Plaintiff has raised a genuine issue of fact as to whether she was denied tenure and terminated in retaliation for protected Title VII opposition.
WHEREFORE,
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment Regarding Retaliatory Discharge, filed December 10, 1999 [Doc. No. 53] is HEREBY DENIED.
Notes
. The Court accepts as undisputed all facts admitted by both parties and all facts for which no competent contrary evidence has been presented by the opposing party.
See Anderson v. Liberty Lobby, Inc.,
. It is not clear from the facts in which categories Plaintiff was rated as needing improvement.
. Defendants point out that the ultimate pay differential was only $68.98 for the 1996-1997 academic year. Notwithstanding this minimal salaiy discrepancy, the amount of pay differential is not dispositive for an adverse rate of pay claim.
. Defendants also state that because the rate of pay claim was not included in Plaintiffs September 1994 EEOC charge, she is precluded from pursuing a claim of discrimination on that alleged conduct.
See Simms v. Dept. of Mental Health and Substance Abuse Services,