Taylor v. Bell et al (MAG2)BRIEF/MEMORANDUM in Support re MOTION for Summary JudgmentM.D. Ala.August 1, 2018IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION DAYA TAYLOR, Plaintiff, v. TUSKEGEE UNIVERSITY, Defendant. ) ) ) ) ) ) ) ) ) CIVIL ACTION NO.: 3:16-cv-00991-WKW-WC DEFENDANT’S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Lisa Karen Atkins Josh C. Harrison OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 420 20th Street North, Suite 1900 Birmingham, AL 35203 Tel.: (205) 328-1900 Fax: (205) 328-6000 E-mail: lisa.atkins@ogletreedeakins.com josh.harrison@ogletreedeakins.com Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 1 of 38 i TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 AGREED STATEMENT OF UNCONTESTED FACTS .............................................................. 1 FACTS PLAINTIFF’S COUNSEL CALLS CONTESTED WITHOUT IDENTIFYING EVIDENCE CONTROVERTING THE FACT.................................................................. 7 SUMMARY JUDGMENT STANDARD .................................................................................... 13 ARGUMENT ................................................................................................................................ 14 I. Plaintiff fails to establish interference with her exercise of FMLA rights or retaliation under the FMLA. .............................................................................................................. 14 A. FMLA interference ............................................................................................... 14 1. Sending a letter to plaintiff during her FMLA leave is not interference. . 15 2. Asking plaintiff why she reported to work during her leave and asking her to contact Tuskegee when she planned to access Tuskegee’s campus is not interference. .............................................................................................. 16 B. FMLA Retaliation ................................................................................................. 17 II. Plaintiff fails to establish discrimination based on sex. .................................................... 19 A. Failure to be hired as department head (Compl., ¶ 46) ......................................... 19 B. Failure to receive a year-to-year teaching assignment following the expiration of her probationary period (Compl., ¶ 47) ................................................................ 20 C. Failure to receive tenure........................................................................................ 22 D. Plaintiff has failed to establish that Dean Bell was intimidated by plaintiff because she “was the more professionally-qualified for an architect within the Department, whereas the [sic] Ms. Bell was less intimidated by the two male professors…and Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 2 of 38 ii was more comfortable with said professors because of their male gender.” (Compl., ¶ 48). ...................................................................................................... 23 E. Plaintiff cannot establish Tuskegee’s legitimate, non-discriminatory and non- retaliatory reasons for its treatment of plaintiff is pretextual. ............................... 24 III. Plaintiff fails to provide facts establishing that a hostile environment existed, and her hostile environment claim exceeds the scope of her charge. ............................................ 26 A. Plaintiff’s cold and hostile environment claim exceeds the scope of her charge. 26 B. Plaintiff fails to factually establish a hostile work environment based on sex. .... 28 1. Dean Bell’s treatment of plaintiff is not connected to plaintiff’s sex. ...... 29 2. The conduct is not objectively severe or pervasive. ................................. 32 C. Plaintiff fails to establish a retaliatory harassment claim. .................................... 33 CONCLUSION ............................................................................................................................. 34 Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 3 of 38 1 INTRODUCTION In this employment litigation, Daya Taylor (“plaintiff”), claims her former employer, Tuskegee University (“Tuskegee”), violated Title VII and the Family Medical Leave Act1 by denying her tenure and following Tuskegee policy by not extending her probationary period of employment beyond seven years. She also claims Dr. Carla Jackson Bell (“Dean Bell”), plaintiff’s supervisor for a short period in 2016, was intimidated and jealous of plaintiff. Plaintiff alleges Dean Bell’s hostilities toward her resulted in a cold and hostile work environment. She also argues that Dean Bell should have unilaterally offered her a teaching contract after her probationary period expired. For the reasons discussed in detail below, all of plaintiff’s claims fail as a matter of law and should be dismissed by this Motion for Summary Judgment. AGREED STATEMENT OF UNCONTESTED FACTS2 I. Tuskegee Hires Plaintiff on a seven year probationary term 1. Tuskegee hired plaintiff as a tenure track faculty member under a seven-year probationary period that began on August 1, 2009, and ended on May 15, 2016. Plaintiff's depo. 311:5- 18; 362:4-8; 362:21-363:3; 238:16-239:1; 196:11-17; Bell Decl. at 16 (TU/Taylor 1823). 2. After Tuskegee hired plaintiff, she received Tuskegee’s Faculty Handbook that explains Tuskegee’s commitment to equal opportunity employment and prohibition of discrimination on the basis of sex, disability and other protected characteristics. Plaintiff’s depo. Bell Decl. at TU/Daya Taylor 443-445. 1 The Amended Complaint also asserts claims under the Americans with Disabilities Act, the Rehabilitation Act, and state contract law, but plaintiff voluntarily dismissed those claims. [Doc. 54.] 2 Tuskegee sets forth the following statement of undisputed facts for purposes of this motion only and bearing in mind that this Court must construe the evidence in a light most favorable to plaintiff at the summary judgment stage. Consistent with Court’s Order [Doc. 42], the parties conferred regarding this statement of uncontested facts. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 4 of 38 2 3. Tuskegee’s Faculty Handbook also includes a notification regarding the Family Medical Leave Act. Bell Decl. at TU/Daya Taylor 461. 4. The Faculty Handbook is not a contract. Plaintiff’s depo. 193:2-4. 5. As explained in Tuskegee’s Faculty Handbook, Tuskegee has several different types of faculty appointments, including (1) tenure track appointments and (2) non-tenure track appointments. Plaintiff’s depo. Ex 6 at TU/Daya Taylor 419. 6. Tenure track appointments may lead to tenure while non-tenured track appointments do not. Plaintiff’s depo. Ex 6 at TU/Daya Taylor 419. 7. Non-tenure track appointments are used to appoint individuals to year-by-year or multiple year contracts, which may be considered for renewal, but are not automatic or guaranteed. Plaintiff’s depo. Ex 6 at TU/Daya Taylor 419. 8. Tenure track faculty receive a probationary appointment instead of a renewable year-by- year contract. Bell depo. 66:6-9. 9. The maximum probationary period for Tuskegee faculty is seven years, with a tenure decision normally being made by the end of the sixth year. Plaintiff’s depo. Ex 6 at TU/Daya Taylor 432-433. 10. Tuskegee is under no obligation to renew probationary appointments and holders of probationary appointments shall have no presumption of tenure or expectation of automatic reappointment. Plaintiff’s depo. Ex 6 at TU/Daya Taylor 433. 11. All applications for tenure must be received not later than the end of the first semester of the sixth academic year of employment. Plaintiff’s depo. Ex 6 at TU/Daya Taylor 434. 12. Plaintiff acknowledged a Notice of Employment Agreement stating: “It is the responsibility of the faculty member who is being considered for tenure to ensure that Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 5 of 38 3 his/her dossier is prepared for review during his/her sixth academic year of employment (or the year before his/her probationary period ends, as appropriate[)]. Apply no later Fall of the sixth year (not the seventh year.)” Bell Declaration at 16 (TU/Daya Taylor 498). 13. Plaintiff did not apply for tenure in her sixth year; instead, she applied in her seventh year. Taylor depo. 456:3-12. 14. President Johnson appointed plaintiff as the interim Dean on two occasions: August 6, 2014-June 30, 2015, and July 1, 2015-June 30, 2016. Plaintiff's depo. 43:6-8, 364:11-13; Bell Declaration at 16 (TU/Taylor 480-483). 15. Tuskegee terminated plaintiff’s appointment as the interim Dean effective January 4, 2016. Charley Declaration at 3 (TU/Taylor 479). II. Tuskegee Hires Dean Bell 16. In 2015, a Tuskegee search committee, including other Tuskegee faculty members who were plaintiff’s peers, selected Dean Bell as Dean of the architecture school. Plaintiff's depo. 71:9-11; 71:17-20. 17. Plaintiff was a candidate for the Dean's position (Plaintiff's depo. 69:5-7), but she was not selected by the search committee. Plaintiff's depo. 71:21-22. A. Interactions between Plaintiff and Bell before Bell’s selection as Dean. 18. Dean Bell asked plaintiff to remove the reference to “Lifting the Veil” from plaintiff's resume, and plaintiff eventually did as Dean Bell requested. Plaintiff's depo. 58:4-5; 58:9- 11; 56:15-22; Plaintiff’s depo. Ex 40 (TU/Daya Taylor-1783). B. Dean Bell hits the ground running after she is hired. 19. After her hire but before her start date, Dean Bell sent Provost Cesar Fermin an assessment that was very critical of the architecture department and addressed issues that had been Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 6 of 38 4 discussed at a meeting between President Johnson, Provost Fermin, and plaintiff. Fermin depo. 42:2-13; 87:20-88:3. 20. Dean Bell asked President Johnson if she could meet with plaintiff before she officially arrived at Tuskegee because an architecture department accreditation visit was coming that year, and it was very important to Dean Bell for the department to be prepared and to address the concerns from the previous visit. Bell depo. 105:4-8. 21. Based on the accrediting agency report and her assessment of the contents of the report, Dean Bell concluded that the current leadership was not strong enough to help her through the accreditation process. Bell depo. 47:3-20; 82:1-3; 115:18-22. 22. Dean Bell verbalized concern to plaintiff about the School of Architecture's upcoming accreditation visit and the department’s lack of readiness. Plaintiff's depo. 81:12-23; 82:16- 19; 82:21-23. 23. On January 30, 2016, Dean Bell sent plaintiff a memorandum thanking her for her service, stating that she would be posting the department head's position on February 8, 2016, and stating that, during the transitional period, plaintiff would need to meet all teaching and administrative obligations in her role as department head. Plaintiff's depo. 292:1-21. Plaintiff agrees this is within Dean Bell’s discretion and authority. Plaintiff's depo. 293:2- 5. 24. Dean Bell sent plaintiff a memorandum in February 2016 about uncompleted tasks, but plaintiff did not think this was harassment. Plaintiff's depo. 300:17-22. 25. On March 30, 2016, Dean Bell issued a Notice of Employment Agreement covering the period between January 5, 2016 and May 2016. Plaintiff’s depo. Ex 11 (TU/Daya Taylor 1202). Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 7 of 38 5 26. Plaintiff believes the following contributed to Dean Bell and plaintiff not getting along: plaintiff being a leader intimidated Dean Bell; plaintiff had a Florida architectural license; plaintiff did not cooperate with Dean Bell’s directive about signing a release and waiver related to the NEH grant proposal; Dean Bell's grant proposal; plaintiff preceded Bell as interim Dean; and plaintiff previously held a National Council for Architecture registration board certification. Plaintiff's depo. 433:22-434:14; 437:9-14; 449:2-11. 27. One of the female faculty members Dean Bell hired is a licensed architect. Bell depo. 61:8- 62:1. 28. As of June 15, 2018, the faculty composition at the School of Architecture was three females and four males. Bell depo. 61:8-62:1. 29. Dean Bell issued a terminal contract to a male, non-tenured faculty member. Bell depo. 46:12-47:4. III. Tuskegee denies Plaintiff’s Tenure Application. 30. Provost Fermin became Tuskegee's Provost on October 6, 2014. Fermin depo. 7:3-5. The Provost is the chief academic officer and responsible for the tenure process. Fermin depo. 9:9-10. 31. Although Fermin disclosed to President Johnson his cancer diagnosis, President Johnson hired him as University Provost and second-highest ranking officer at the University. Fermin depo. 7:3-5; 7:18-23. 32. When Dr. Fermin received the decision of the faculty Senate not to award plaintiff tenure, he concurred with the recommendation. Fermin depo. 70:19-22. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 8 of 38 6 33. President Johnson ultimately made the decision not to award plaintiff tenure. Johnson Decl. ⁋ 2. 34. Provost Fermin notified Dean Bell in a letter that her tenure application had been denied. Fermin depo. 66:10-15. 35. On May 17, 2016, Dean Bell notified plaintiff that her tenure application had been denied and that her probationary period ended at the end of May 2016. Plaintiff’s depo. Ex. 12 (TU/Daya Taylor 1205). 36. Plaintiff does not believe Dean Bell’s notice that plaintiff’s probationary period of employment ended is harassment. Plaintiff's depo. 308:10-13. 37. Dr. Laud-Hammond was not in plaintiff's College or department. Plaintiff's depo. 451:17- 23-452:1, 452:6-10. IV. Plaintiff’s probationary period of employment ends. 38. Plaintiff’s probationary period ended in May 2016. Plaintiff's depo. 211:16-18. 39. In her application for unemployment benefits filed with the Alabama Department of Labor, plaintiff wrote that the reason for her separation from Tuskegee, was “probationary period ended.” Plaintiff's depo. 253:13-19. 40. After plaintiff’s probationary period ended, Dean Bell assumed the role of department chair. Bell depo. 58:4-7. 41. Plaintiff did not apply for the department head position which Dean Bell posted on February 8, 2016. Bell depo. 254:8-10; 145:11-20. 42. Dean Bell has no knowledge of any instance where other individuals were denied tenure at the end of their probationary period, and continued their employment with Tuskegee beyond the probationary period. Bell depo. 178:6-11. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 9 of 38 7 43. There are non-tenured faculty at Tuskegee who teach as adjuncts, consultants, or one semester assignments. Fermin depo. 58:13-16. 44. Fluker and Ames were not eligible to be the department head while plaintiff was. Bell depo. 256:15-17. 45. Fluker and Ames were not allowed to teach during the summer or to keep health insurance and other benefits. Bell depo. 73:7-11. 46. Fluker and Ames were each on a 10-month contract, while plaintiff had a 12-month contract. Bell depo. 73:14-19. V. Plaintiff’s FMLA Leave. 47. Plaintiff is not currently disabled. Plaintiff's depo. 151:6-7. 48. Plaintiff was approved for FMLA leave with the start date of March 1, 2016. Plaintiff’s depo. 307:3-5. 49. Her leave ended on May 24, 2016, and she was, in fact, on leave from March 1, 2016 until May 24, 2016. Plaintiff's depo. 307:6-11 and Ex. 13. 50. Plaintiff received her entire 12 weeks FMLA leave. Plaintiff's depo. 219:23-220:6. 51. During plaintiff’s FMLA leave, she reported to campus, and Tuskegee asked that she not enter Tuskegee’s campus during her period of FMLA leave. Plaintiff’s depo. Ex. 27 (Docs produced by plaintiff 79). FACTS PLAINTIFF’S COUNSEL CALLS CONTESTED WITHOUT IDENTIFYING EVIDENCE CONTROVERTING THE FACT I. Tuskegee Hires Plaintiff on a seven year probationary term. 52. When plaintiff applied for tenure during her seventh year, it was untimely. Plaintiff depo. 456:3-12. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 10 of 38 8 53. President Brian Johnson never said to the plaintiff that she was going to get tenure. Plaintiff's depo. 68:13-14; Johnson Declaration at ⁋ 14. 54. When President Johnson evaluated plaintiff in 2015, President Johnson rated her “below expectations” in 3 of 7 categories. Plaintiff's depo. 293:13-17; 293:19-22; 294:10-12. II. Tuskegee Hires Dean Bell (a) Interactions between Plaintiff and Bell before Bell’s selection as Dean. 55. In 2014, Dean Bell received a copy of plaintiff’s resume and saw that, on the resume, plaintiff had claimed Bell’s grant proposal “Lifting the Veil” as her own without including Bell's name. Bell depo. 41:16-21; Bell depo. Ex 6 (TU/Daya Taylor-001165); Plaintiff's depo. 434:23 - 435:4. 56. Plaintiff did not write the NEH grant proposal for “Lifting the Veil.” Plaintiff's depo. 48:14- 17; 50:19-21. 57. Dean Bell wrote the grant proposal for “Lifting the Veil,” Plaintiff's depo. 55:3-5. 58. In addition to claiming Dean Bell’s work, Tuskegee also identified a grant prepared by Dr. Richard Dozier that plaintiff claimed on her resume as her own. Plaintiff's depo. 344:3-5 and 13-19. (b) Dean Bell hits the ground running after she is hired. 59. Provost Fermin saw Dean Bell’s assessment of the department not as trying to paint plaintiff with a negative brush, but rather as bringing him up-to-date and providing information he requested. Fermin depo. 88:4-13. Provost Fermin understands that the issues identified by Dean Bell are accurate. Fermin depo. 48:15-19. 60. Dean Bell notified plaintiff that Dean Bell was concerned about plaintiff’s performance. (Plaintiff Depo. 81:5-82:23). Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 11 of 38 9 61. After Dean Bell’s start date in January 2016, she called faculty meetings once a month. (Plaintiff's depo. 131:4-6) During those meetings, Dean Bell was critical of the state of the department, but she was not specifically critical of plaintiff. (Plaintiff's depo. 131:12-19) Dean Bell did not take over any of the plaintiff’s department head duties or take any duties away from her while she was interim department head. Plaintiff's depo. 132:15-19. 62. Dean Bell assigned plaintiff tasks and related deadlines. (Plaintiff's depo. 144:19-22) Plaintiff does not challenge the legitimacy of these assignments by Dean Bell to her as a department head and does not know if Dean Bell treated male department heads in the same manner. Plaintiff's depo. 146:9-12; 262:20-23; 148:13-14; 148:21-23; 149:1-8. 63. Dean Bell is equally comfortable with male colleagues and female colleagues. Bell depo. 54:15-19. 64. Plaintiff believes Dean Bell did not believe plaintiff was qualified as the interim dean. Plaintiff’s depo. 176:12-16; 93:8-16. III. Tuskegee denies Plaintiff’s Tenure Application. 65. When plaintiff applied for tenure, there were no other male colleagues who were in their sixth or seventh year of their probationary period. Bell depo. 63:17-22. 66. President Johnson’s decision to deny plaintiff tenure was based on negative recommendations from the Tuskegee University Faculty Senate and Provost Fermin, as well as President Johnson’s personal assessment that plaintiff did not satisfy the University’s tenure criteria. Johnson Decl. ⁋ 3. 67. President Johnson did not consider plaintiff’s sex, alleged disability, medical leave, or any other protected status in denying her tenure. Johnson Decl. ⁋ 16. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 12 of 38 10 68. President Johnson did not have knowledge that plaintiff requested and/or took FMLA leave or had a disability at the time he denied plaintiff tenure. Johnson Decl. ⁋ 4-6. 69. When President Johnson denied plaintiff’s tenure application, she was the only applicant from her department. President Johnson did not consider the tenure application of any male faculty member from plaintiff’s department in 2016. Johnson Decl. ⁋ 15, 17. IV. Plaintiff’s probationary period of employment ends. 70. If plaintiff was replaced as interim department head by Dean Bell, plaintiff would agree that she was not replaced by a less qualified male. Plaintiff's depo. 428:7-12. 71. Provost Fermin knows of no exceptions that will allow a contract to be extended past the end of the probationary period. Fermin depo. 61:17-62:2. 72. In the 2015-2016 academic year, plaintiff in her role as interim Dean and interim department head approved and issued Rod Fluker and Jack Ames non-tenure, year-to-year contracts. Bell depo. 255:21-23, 256:13-14.; Plaintiff's depo. 311:5-10, 429:17-21. 73. After becoming Dean, the first year, Carla Bell continued the practice. Bell depo. 66:23- 67:7; Bell Decl. at 12. 74. Plaintiff did not ask Dean Bell or anyone else to allow plaintiff to teach on a temporary, non-tenured, or year-to-year basis. Bell depo. 254:5-7; 254:11-18. 75. Plaintiff has no knowledge of whether Rod Fluker or Jack Ames ever applied for tenure. Plaintiff's depo. 449:21-451:12. 76. Fluker and Ames were not eligible to be the department head while plaintiff was. Bell depo. 256:15-17. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 13 of 38 11 77. Fluker and Ames were different from plaintiff because she was eligible to be an interim department head. Bell depo. 256:18-21. 78. Fluker and Ames were not eligible for payment of a stipend for serving as an interim department head as plaintiff was. Bell Decl., ¶ 5. 79. Fluker and Ames were not eligible to be Dean. Bell depo. 257:1-2. V. Plaintiff’s FMLA Leave. 80. Plaintiff is not aware of any notification related to her FMLA that listed a specific medical reason for her leave. Plaintiff's depo. 323:17-20. 81. Plaintiff’s FMLA paperwork was sent directly to Tuskegee Human Resources, and Dean Bell, Provost Fermin, and President Johnson did not see or review plaintiff’s FMLA paperwork. Bell depo. 238:23-239:1-3; Fermin depo. 67:9-16; Johnson Decl. ⁋ 6. 82. It is Tuskegee policy that once an employee needs FMLA leave, the employee should not report to work when they are scheduled for leave. Fermin depo. 68:4-8. 83. Dr. Laud-Hammond did not report to Dean Bell. Plaintiff's depo. 451:17-23-452:1, 452:6- 10. 84. Different decision makers were involved in deciding whether plaintiff received tenure from those involved in determining whether Laud-Hammond received tenure. Plaintiff's depo. 452:11-14. 85. On January 24, 2018, the EEOC issued a Recommendation for Closure of plaintiff’s charge concluding, “The investigation does not support the allegations of discrimination) and “CP (Charging Party) not discharged.” Exhibit F at 2391.3 3 The documents from the EEOC are authenticated under Federal Rule of Evidence 901(b), using affidavit testimony by a witness with knowledge, Cynthia Martinez (Doc. G), testifying that the item is what the witness claims it to be. Fed. R. Evid. 901(b)(1); Osborn v. Butler, 712 F. Supp. 2d 1134, 1146 (D. Idaho 2010) (holding that "the standard for Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 14 of 38 12 86. There is no mention in plaintiff's EEOC charge of a hostile working environment. The charge complains about denial of tenure, termination from employment, that similarly situated males in her department were granted tenure, that other males had retained their positions, and that she was replaced by a younger employee. Martinez Decl. at 6; TU/Daya Taylor 2392. 87. A lengthy supplement complains that Tuskegee failed to comply with the Faculty Handbook, referenced an appeal of her termination, lack of due process, improper notice concerning the renewal of her contract, improper notice and lack of due process concerning denial of tenure, being emailed notice of denial of tenure while she was on FMLA leave, execution of her job duties with professionalism, her professional architectural license, her status as a licensed architect, her supervisor not being a licensed architect, denial of due process (for the third time), failure to receive a terminal contract, a salary error in her appointment letter, her promotion to Associate Professor, incorrect dates in her contract, her positions as interim Dean and "Acting Department Head," a meeting with Dean Bell during which plaintiff was advised that she would be replaced as department head, and a request for prompt findings and issuance of a Right to Sue letter. TU Doc. 2398-2400. Again, there is no mention of hostile work environment related to sex or disability. Exhibit F at 2398-2400. admissibility under [Federal Rule of Evidence] 901(a)" was satisfied "because [the affiant] explain[ed] that he printed the website, gave the website address, and represented that it had not been altered or changed from the form maintained at the website address"); Thompson v. Bank of America Nat. Ass'n, 783 F. 3d 1022 (5th Cir. 2015) (finding information from a website properly authenticated where a knowledgeable witness's affidavit "explains that he printed the website, gave the website address, and represented that it had not been altered or changed from the form maintained at the website address); U.S. v. Tank, 200 F.3d 627, 630 (9th Cir. 2000) (prima facie showing of authenticity for a printout of website chat room logs established when the person who printed them explained how he created the logs with his computer and stated that the printouts appeared to be an accurate representation of the chat room conversations). Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 15 of 38 13 88. The Memorandum for Closure, written by Federal Investigator Michael Albert and approved by Enforcement Supervisor Sheri Guenster, made no mention of a claim involving hostile work environment. Exhibit F at 2391. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if the movant shows there is no genuine dispute as to any material fact4 and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute is genuine if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id. A genuine dispute as to a material fact exists if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge should not weigh the evidence, but determine whether there are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In considering a motion for summary judgment, trial courts must give deference to the non- moving party by "view[ing] the materials presented and all factual inferences in the light most favorable to the nonmoving party." Animal Legal Def. Fund v. U.S. Dep't of Agric, 789 F.3d 1206, 1213-14 (11th Cir. 2015). However, "unsubstantiated assertions alone are not enough to withstand a motion for summary judgment." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory allegations and "mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment." Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th 4 A material fact is one that "might affect the outcome of the case." Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1049 (11th Cir. 2015). Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 16 of 38 14 Cir. 2004)). In making a motion for summary judgment, "the moving party has the burden of either negating an essential element of the nonmoving party's case or showing that there is no evidence to prove a fact necessary to the nonmoving party's case." McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting motions for summary judgment, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). ARGUMENT I. Plaintiff fails to establish interference with her exercise of FMLA rights or retaliation under the FMLA. The FMLA protects employees against interference with the exercise or attempted exercise of substantive rights under the statute. 29 U.S.C. § 2615(a)(1). It also protects against retaliation for exercising or attempting to exercise rights under the statute. See 29 C.F.R. § 825.220(c). To prove interference, plaintiff must show that she was entitled to a benefit under the FMLA and denied that benefit. Strickland v. Water Works and Sewer Bd. of Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001). To prove retaliation, she must establish that: “(1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment decision; and (3) that the decision was causally related to the protected activity.” Id. at 1207. She must also show that the employer's interference prejudiced her by causing a real, remediable impairment of her rights under the FMLA. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89-90 (2002). A. FMLA interference Plaintiff requested and received the maximum leave permitted under the FMLA: 12 weeks. Plaintiff’s depo. 307:3-11. She alleges that Dean Bell and HR employee Daphne Charley interfered with her exercise of rights under the FMLA by (1) mailing her a document to sign during her Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 17 of 38 15 leave,5 (2) conversing with her when she unexpectedly showed up at the office while on medical leave,6 and (3) telling her that while on medical leave, she could not come to campus without first notifying HR. None of these de minimus events denied plaintiff a benefit to which she was entitled under the FMLA. Strickland, 239 F.3d at 1206-07. None caused a real, remediable impairment of her rights under the FMLA. Ragsdale, 535 U.S. at 89-90. 1. Sending a letter to plaintiff during her FMLA leave is not interference. The consensus among courts is that a communication about an employee’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009); Schrenk v. Genon Energy Services, LLC., 2005 WL 150727, *9, (S.D. Tex. 2015). “[T]here is no right in the FMLA to be ‘left alone’” or be completely relieved from responding to an employer’s discrete inquiries. O’Donnell v. Passport Health Communications, Inc., 561 F. App’x 212, 218 (3d Cir. 2014) (“de minimis contacts did not require [employee] to perform work to benefit the company and did not materially interfere with her leave”); Sabourin v. Univ. of Utah, 676 F.3d 950, 961 (10th Cir. 2012) (“[T]he University’s request for materials from [the employee] was not an impermissible demand for work during FMLA leave. It was a request for a modest, unburdensome effort to enable [the employee’s] work to be performed while he was on leave.”). A communication about the employee’s job while on leave does not interfere with the exercise of an employee’s FMLA rights. Kesler v. Barris, Sott, Denn & Driker, P.L.L.C., 482 F. Supp. 2d 886, 910–11 (E.D. Mich. 2007) (occasional phone 5 After she had been out on medical leave for several weeks, on April 4, 2016, plaintiff received a letter reminding her that her 7-year probationary period was ending. Plaintiff's depo. 209:21-23. It is correct that May 2016 was the end of her probationary period. Plaintiff's depo. 211:16-18. 6 She believes that Dean Bell knocking on the door, entering her office and asking why she was at work while she was on FMLA constituted harassment. Plaintiff's depo. 246:17-21. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 18 of 38 16 calls inquiring about files do not qualify as “interference” with FMLA leave). And, when limited to passing on institutional knowledge, or providing closure on assignments, employers do not violate the FMLA by making such calls. Id. 2. Asking plaintiff why she reported to work during her leave and asking her to contact Tuskegee when she planned to access Tuskegee’s campus is not interference. Regarding knocking on her office door, briefly conversing with her,7 and later directing her not to come to the workplace without first notifying Human Resources, plaintiff demonstrates no way that this denied her a right to which she is entitled under the FMLA or caused a real, remediable impairment of her rights under the FMLA. The FMLA does not contain a right to come to work – it contains a right not to come to work. She fails entirely to demonstrate how a conversation, being told to stay away from campus unless she first notified HR, or being sent a letter prejudiced her as the result of a real, remediable impairment of her rights under the FMLA. Demers v. Adams Homes of Northwest Fla., Inc., 321 Fed. Appx. 847, 849 (11th Cir.2009), citing Ragsdale, 535 U.S. at 89. As testified by Provost Fermin, when he took FMLA leave, he was also told in writing and verbally not to return to campus until his doctor released him to return to work. Fermin depo. 67:17-23. It is policy that once a physician agrees on the need for FMLA leave, employees should not report to work when they are scheduled for leave. Fermin depo. 68:4-8. In his case, Dr. Fermin requested permission twice to come on campus while he was on FMLA. Fermin depo. 68:9-13. He did not set foot on campus while he was on FMLA leave except for those two times. Fermin depo. 68:20-22. 7 Moreover, “[a]n employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work.” 29 C.F.R. § 825.311(a). Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 19 of 38 17 In sum, plaintiff fails to demonstrate “that [she] was denied a benefit to which [she] was entitled under the FMLA,” Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266-67 (11th Cir.2008), or that she was “prejudiced by the violation in some way." Ragsdale, 535 U.S. at 89; see McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 7 (D.C.Cir.2010) ("[Plaintiff's] burden is to show both that her employer interfered with ... the exercise of or the attempt to exercise, any right provided by the FMLA ... and that she was prejudiced thereby.") Absent prejudice, she cannot establish an FMLA interference claim, and therefore, Tuskegee is entitled to summary judgment in its favor on plaintiff’s FMLA interference claims. B. FMLA Retaliation To state an FMLA retaliation claim, plaintiff must demonstrate that Tuskegee intentionally discriminated against her in the form of an adverse employment action for having exercised an FMLA right. Strickland, 239 F.3d at 1207. A plaintiff bringing a retaliation claim faces the increased burden of showing that her employer's actions was the but-for cause of the alleged adverse employment action. Jones v. Allstate Ins. Co., 281 F. Supp. 3d 1211, 1219 (N.D. Ala. Aug. 12, 2016) (applying but-for causation to an FMLA retaliation claim). When a plaintiff asserts a claim of retaliation under the FMLA, absent direct evidence of the employer's intent, the court applies the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), for evaluating Title VII discrimination claims. Strickland, at 1207, citing Brungart v. BellSouth Telecomm. Inc., 231 F.3d 791, 798 (11th Cir. 2000). To prove retaliation, she must demonstrate that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment decision; and (3) the decision was causally related to the protected activity. Parris v. Miami Herald Publ'g Co., 216 F.3d 1298, 1301 (11th Cir. 2000). Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 20 of 38 18 Plaintiff cannot survive summary judgment on her retaliation claim because she fails to establish the third element of a prima facie case—that Tuskegee fired her for engaging in protected activity. First, a decision to fire plaintiff did not occur after her FMLA leave; rather, plaintiff’s seven-year probationary period simply expired. Tuskegee established the end date for her probationary period in 20098, and it would have expired in May 2016 whether plaintiff applied for FMLA leave or not. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1236 (11th Cir. 2010) (“[A]n employee can be dismissed, preventing her from exercising her right to commence FMLA leave, without thereby violating the FMLA, if the employee would have been dismissed regardless of any request for FMLA leave.”) There is no causal relationship between the end date of plaintiff’s probationary period and her request for FMLA leave. Id. Second, President Johnson, the decision-maker regarding plaintiff’s tenure application, has stated under oath that he did not know of plaintiff’s application for, or receipt of, leave under the FMLA. Johnson Decl. ¶ 5. Because President Johnson did not know of plaintiff’s FMLA request and leave, he could not have been motivated by retaliatory animus when he decided to deny plaintiff tenure. The plaintiff has failed to carry her burden and the University is entitled to judgment in its favor as a matter of law and dismissal of all claims under the FMLA. Brungart, 231 F.3d at 800 (“Because the evidence is unrefuted that [the decision maker] did not know [plaintiff] had requested and been scheduled for medical leave, [plaintiff] failed to create a genuine issue of fact as to a causal connection between her termination and her scheduled leave or her request for it.”). 8 Bell Decl. at 16 (TU/Taylor 1823) (2009 Notice of Employment) Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 21 of 38 19 II. Plaintiff fails to establish discrimination based on sex. Plaintiff states that she was subjected to sex discrimination under Title VII and alleges that the following actions occurred because of her sex: (a) she was denied tenure; (b) her probationary period ended; (c) she was terminated as interim department head; (d) Tuskegee hired two male professors under annual contracts; and (e) Dean Bell was intimidated by her. “To make out a prima facie case of [sex] discrimination a plaintiff must show (a) she belongs to a protected class; (b) she was qualified to do the job; (c) she was subjected to adverse employment action; and (d) her employer treated similarly situated employees outside her class more favorably” by not unilaterally offering her a year-to-year teaching contract. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Plaintiff fails to establish the fourth element in any of these claims. A. Failure to be hired as department head (Compl., ¶ 46) Plaintiff alleges Tuskegee replaced her with a less qualified male as department head. Compl., ¶ 46. Plaintiff’s argument is legally and factually flawed. On February 8, 2016, while plaintiff was serving as interim department head, Dean Bell posted the department head position. Bell depo. 145:15-16. Bell expected that, if plaintiff wanted the position, she would apply for it. Bell depo. 146:8-10. Plaintiff never applied. Bell depo. 254:8- 10, 145:11-20. Without applying, there was no way for plaintiff to get the job. See Bell depo. 146:10-12. Even if plaintiff applied for and did not receive the job, the claim still fails because Dean Bell, a female, assumed the role of department head after plaintiff’s probationary period expired. Bell depo. 58:4-7. Plaintiff conceded during her deposition that if she was replaced as interim department head by Dean Bell, she would agree that she was not replaced by a less qualified male. Plaintiff's depo. 428:7-12. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 22 of 38 20 Because plaintiff did not apply for the department head position and because plaintiff was not replaced by a less qualified male, plaintiff’s allegations regarding the department head positon do not establish plaintiff’s prima facie case of sex discrimination. Flippo v. American Power Stores, Inc., 20 F. Supp. 3d 1299, 1313 (N.D. Ala. 2014) B. Failure to receive a year-to-year teaching assignment following the expiration of her probationary period (Compl., ¶ 47) Plaintiff’s complaint alleges: “A second basis for Plaintiff’s averment of gender discrimination is that two male professors whose probationary period had expired kept getting hired in the Architecture Department [and]… continue to have their contracts renewed annually.” As comparators, plaintiff identifies Rod Fluker and Jack Ames, two non-tenure track employees who work in the architecture school. Regardless of Tuskegee’s treatment of Fluker and Ames, because of the significant differences between tenure track probationary appointments like plaintiff’s and non-tenure track year-to-year contracts like Fluker and Ames’, Fluker and Ames are not comparables as a matter of law. Wu v. Thomas, 847 F.2d 1480, 1484 (11th Cir. 1988). Tuskegee has several types of faculty appointments, including (1) tenure track appointments ,and (2) non-tenure track appointments. Plaintiff’s depo. at Ex. 6, TU/Daya Taylor 419. There are a number of differences between the appointments including: (a) tenure track appointments may lead to tenure; non-tenure track faculty cannot; (b) tenure-track faculty have probationary periods while non-tenure track faculty are appointed to year-by-year contracts, which may be considered for renewal, but are not automatic or guaranteed; and (c) tenure-track faculty are eligible to be deans and department heads, for administrative stipends in addition to their base salary, and to teach summer school, while non-tenure faculty are not eligible. Plaintiff’s depo. at Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 23 of 38 21 Ex. 6, TU/Daya Taylor 419; Bell depo. 66:6-12; 256:5-17; Bell Decl. ¶ 5. Plaintiff did, in fact, receive payment of such stipends. In addition, after plaintiff's probationary period expired, she had the option of requesting a teaching function as an adjunct, a consultant, or other teaching assignment. Fermin depo. at 58:21- 59:6; see also 58:13-16. She did not communicate with Dean Bell or ask to come back and teach on a temporary or year-to-year basis. Bell depo. at 254:5-7. Plaintiff did not tell Dean Bell she wanted to return in a non-tenure track employee position. Bell depo. at 254:11-14. To Dean Bell's knowledge, plaintiff did not ask anyone whether she could come back to work as a non-tenure track employee. Bell depo., at 253:19-22. Although plaintiff asked for her tenure-track probationary period to be extended by one year, neither Provost Fermin nor Dean Bell knows of any instance in which this was allowed for anyone. Fermin depo. at 61:22-62:2; Bell deposition at 178:6-11. And the Faculty Handbook provides that the maximum probationary period for Tuskegee faculty is seven years. Plaintiff’s depo. Ex. 6 at TU/Daya Taylor 433; Fermin depo. at 61:17-20. It is a legitimate reason for a university to not extend a teacher’s appointment beyond the maximum allowed under the faculty handbook. Morrow v. Auburn University at Montgomery, 973 F. Supp. 1392, 1408 (M.D. Ala. 1997). To defeat summary judgment, plaintiff must factually establish that other employees who were similarly situated to her in all relative respects were treated more favorably. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 n.17 (11th Cir. 2011) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). Ames and Fluker not only failed to receive preferential treatment as non-tenure track faculty, they are not similarly situated to plaintiff because of the significant differences between tenure-track and non-tenure track faculty. Therefore, the Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 24 of 38 22 University is entitled to summary dismissal of her claim that Ames and Fluker were similarly situated to her and treated more favorably based on sex as a matter of law. C. Failure to receive tenure To establish a prima facie case regarding her tenure denial, plaintiff must establish that Tuskegee treated similarly situated employees outside her class more favorably. Crawford, 529 F.3d at 970. In the context of tenure denial, faculty members in different departments, with different department chairs, and who were reviewed, at least in part, by different evaluators, are not similarly situated. Hossain v. Steadman, 855 F. Supp. 2d 1307, 1314 (S.D. Ala. 2012) (holding other faculty members were not sufficient comparators because they were “in different departments, had different department chairmen, and were reviewed, at least in part, by different evaluators.”); Wu, 847 F.2d at 1480 (plaintiff failed to establish a prima facie case of discrimination because she could not show that an equally or less qualified male was promoted “during the time of her promotional application” when the decision was made by a new university president). Kim v. Bd. of Trustees Of the Ala. Agric. & Mech. Univ., 12-cv-2190-TMP, 2014 WL 4792428, *10 (N.D. Ala. Sept. 24, 2014) (holding plaintiff cannot “claim as comparators faculty members who applied for [other] positions …, who applied in different years, who were granted tenure by different decision makers, or whose fields were otherwise not sufficiently similar.”) (citing Martin v. Auburn Univ. Mont., 908 F. Supp. 2d 1259, 1268-69 (M.D. Ala. 2012)). Plaintiff does not identify any male tenure-track faculty member from her department who was granted tenure at the time that she was denied tenure. See generally, Compl.; Johnson Decl. ¶¶ 15, 17. Based on Kim, Wu, and Hossain, plaintiff’s prima facie case should be dismissed on that basis alone. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 25 of 38 23 The only tenure-track faculty member plaintiff identifies is Dr. Laud-Hammond. Dr. Laud- Hammond is not a proper comparator because (a) he was not in her College or department; Plaintiff's depo. 451:17-23-452:1; (b) he did not report to the same Dean; Plaintiff's depo. 452:6- 10; and (c) different decisions makers were involved in their tenure decisions. Plaintiff's depo. 452:11-14. Therefore, he was not similarly situated, and plaintiff cannot rely upon him to establish a prima facie case. Jones v. Bessemer Carraway Medical Center, 151 F. 3d 1321 (11th Cir. 1998); Holifield, 115 F.3d at 1562 (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 182 (1st Cir. 1989) (“If, [as here,] a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.”). More importantly, Laud-Hammond was also denied tenure. Plaintiff’s depo. 453:1-3. D. Plaintiff has failed to establish that Dean Bell was intimidated by plaintiff because she “was the more professionally-qualified for an architect within the Department, whereas the [sic] Ms. Bell was less intimidated by the two male professors…and was more comfortable with said professors because of their male gender.” (Compl., ¶ 48). First, the plaintiff’s claim is that Dean Bell doesn’t like her. Even if true, “personal animosity is not the equivalent of sex discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a sex discrimination case by accusation.” McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir.1986) (Wisdom, J.), cert. denied, 479 U.S. 1034, 107 S. Ct. 883 (1987); Platner v. Cash & Thomas Contractors, Inc., 908 F. 2d 902, 905 (11th Cir. 1990). Moreover, plaintiff appears to argue Dean Bell favored Fluker and Ames because she approved their non-tenured year-to-year faculty contract in 2016. Not only does plaintiff’s comparison to Fluker and Ames miss its mark, this argument fails because plaintiff initiated the practice of giving Fluker and Ames annual, non-tenure faculty contracts, not Dean Bell. (See Compl. Doc 1, ¶ 47 (alleging Fluker and Ames had received annual contracts for years before Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 26 of 38 24 Dean Bell was hired). Before Dean Bell was hired in January 2016, plaintiff was interim Dean and interim department head and approved Fluker’s and Ames’s year-to-year contracts. Bell Decl. ¶ 5. Bell’s continuation of a practice started by plaintiff does not establish preferential treatment towards male employees by Bell. Putting aside the flawed comparison to Fluker and Ames, plaintiff’s claim that Dean Bell is more comfortable with male colleagues than female colleagues is pure speculation, which Dean Bell strongly denies. Bell depo. 54:15-19. Since arriving, Dean Bell has hired a new female faculty member and terminated male faculty members. Bell depo. 61:8-23-62:1, 46:12-47:4. As of Dean Bell’s June 15, 2018, deposition, the faculty composition at the School of Architecture was three females (one a licensed architect) and four males. Bell depo. 61:8-23-62:1. Plaintiff’s pure conjecture and speculation that Dean Bell preferred to work with men cannot support plaintiff’s prima facie case and does not defeat summary judgment. See Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1982), cited with approval in Hopkins v. Sam’s West, Inc., 216 F. Supp. 3d 1322 (N.D. Ala. 2016) E. Plaintiff cannot establish Tuskegee’s legitimate, non-discriminatory and non- retaliatory reasons for its treatment of plaintiff is pretextual. Further, even if plaintiff establishes a prima facie claim of sex discrimination or FMLA retaliation, plaintiff’s claims fail at the pretext stage. As noted above, Tuskegee provides a legitimate, non-discriminatory and non-retaliatory reason for each act complained of by plaintiff. Notably, in the context of a tenure denial claim, decisions based on the assessment of an applicant’s qualifications have been deemed a legitimate, non-discriminatory reason for the denial of tenure and promotion among university faculty members. Kim, 2014 WL 4792428, *9 (citing Geevarghese v. Cahill, 983 F.2d 1066 (6th Cir. 1992); Gutzwiller v. Fenik, 860 F.2d 1317 (6th Cir. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 27 of 38 25 1988). And this court has already held it is a legitimate reason for a university not to extend a teacher’s appointment beyond the maximum allowed under the applicable faculty handbook. Morrow, 973 F. Supp. at 1408. In evaluating the record for evidence of pretext, the court’s inquiry is limited to the employer’s mindset, as to the “pretext inquiry is concerned with the employer’s perception of the employee’s performance, not the employee’s own beliefs.” Martin v. Auburn Univ., 908 F.Supp.2d 1259 (M.D. Ala. 2012) (quoting Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332-33 (11th Cir. 1998)). “[A]n employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). EEOC v. Total Systems, 221 F.3d 1171, 1176 (11th Cir. 2000) (en banc) (“[T]his decision, as with most business decisions, is not for the courts to second-guess as a kind of super-personnel department.”). During discovery and in plaintiff’s deposition, plaintiff has been unable to identify any evidence calling into material doubt Tuskegee’s reasons for its decisions impacting Plaintiff. For example, plaintiff extensively questioned both Provost Fermin and Dean Bell during deposition as to whether any other faculty member continued working at Tuskegee after their probationary period ended. Both Provost Fermin and Dean Bell testified that they had no knowledge of any faculty member whose probationary period was extended. Fermin depo. 61:22-23-62:1-2; Bell depo. 178:6-11. Moreover, President Johnson explains his decisions as it relates to plaintiff in his declaration, and plaintiff has provided no evidence contradicting what President Johnson considered in making his decisions. Plaintiff disagrees with Tuskegee’s decisions and does not see eye-to-eye with Dean Bell, but plaintiff cannot rebut Tuskegee’s legitimate, non- discriminatory and non-retaliatory reasons by offering her own personal beliefs of her Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 28 of 38 26 qualifications, her own personal interpretation of the Faculty Handbook, or her distrust of Dean Bell. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1267 (11th Cir. 2010) (refusing to second guess an employer’s business decision even though plaintiff disagreed with the company’s assessment of her work quality and complained that her supervisor had unrealistic expectations). Thus, plaintiff’s claims also fail at the pretext stage. III. Plaintiff fails to provide facts establishing that a hostile environment existed, and her hostile environment claim exceeds the scope of her charge. A. Plaintiff’s cold and hostile environment claim exceeds the scope of her charge. Plaintiff alleges a “Cold and Hostile Work Environment” claim based on her sex. (Complaint, 67.) This claim exceeds the scope of her charge. No action alleging a violation of Title VII may be brought unless the alleged discrimination was the subject of a timely-filed EEOC charge. See 42 U.S.C. § 2000e-5. EEOC regulations provide that charges should contain “[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3). “Not all acts complained of, however, need have been included in the EEOC charge; rather, an employee may include in her lawsuit a claim for injury resulting from any practice which `was or should have been included in a reasonable investigation of the administrative complaint.'” Robinson v. Regions Financial Corporation, 242 F. Supp. 2d 1070, 1079 (M.D. Ala. 2003). The starting point for determining the permissible scope of a Title VII lawsuit is the EEOC charge and investigation. Griffin v. Carlin, 755 F.2d 1516, 1522 (11th Cir.1985); Evans v. US Pipe & Foundry Co., 696 F. 2d 925 (11th Cir. 1983). This is because the complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination," Mulhall v. Advance Security, Inc., 19 F.3d 586, 589 n. 8 (11th Cir.1994). The district court should “review of plaintiff's EEOC charge, the employer/defendant's response, and Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 29 of 38 27 the EEOC's investigation results letter” to determine whether a challenged cause of action was “encompassed by the charge or the EEOC's ensuing investigation.” Williamson v. International Paper Co., 85 F. Supp. 2d 1184, 1197 (S.D. Ala. 2000). There is no mention in plaintiff's charge of a hostile working environment. Martinez Decl. at 6; TU/Daya Taylor 2392. The charge complains about denial of tenure, termination from employment, that similarly situated males in her department were granted tenure, that other males had retained their positions, and that she was replaced by a younger employee. Martinez Decl. at 6; TU/Daya Taylor. 2392. A lengthy supplement plaintiff submitted to the EEOC complains that Tuskegee failed to comply with the Faculty Handbook, referenced an appeal of her termination, lack of due process, improper notice about the renewal of her contract, improper notice and lack of due process about denial of tenure, being emailed notice of denial of tenure while she was on FMLA leave, execution of her job duties with professionalism, her professional architectural license, her status as a licensed architect, her supervisor not being a licensed architect, denial of due process (for the third time), failure to receive a terminal contract, a salary error in her appointment letter, her promotion to Associate Professor, incorrect dates in her contract, her positions as interim Dean and “Acting Department Head,” a meeting with Dean Bell during which plaintiff was advised that she would be replaced as department head, and a request for prompt findings and issuance of a Right to Sue letter. Martinez Decl. at 6; TU/Daya Taylor 2398-2400. Again, there is no mention of hostile work environment related to sex or disability. Id. The Williamson court placed the greatest emphasis on the EEOC investigation results letter, describing it as “the strongest indication [of what] . . . was not investigated by the EEOC.” Id. at 1197. Here, the EEOC investigation results letter does not mention hostile work environment, stating that charging party alleged discrimination based on her sex, female, her age, and her Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 30 of 38 28 disability, and contended that she was denied tenure while others were not, and alleged that she was qualified for tenure, and that she was discharged. Id. at 2391. It contains additional detail, but the EEOC does not reference an investigation into a hostile work environment or harassment claim. Id. at 2391. Of note, plaintiff amended and supplemented her charge, but she never amended it to include hostile environment. Id. In Mulhall, the Eleventh Circuit affirmed the district court's conclusion that the plaintiff's promotion claims “were barred by her failure to file an [EEOC] administrative complaint” because “[a] claim of unequal pay [for which plaintiff had filed an EEOC administrative complaint] is not the equivalent of a claim alleging a failure to promote.” 19 F.3d at 589 n. 8. The EEOC charge and subsequent investigation covered multiple topics, such as plaintiff’s allegations regarding breach of contract, the termination notice, and the tenure denial, but the EEOC charge and investigative file is silent as to claims of harassment or hostile work environment. Thus, the Cold and Hostile Work Environment claim exceeds the scope of her charge and should be dismissed because plaintiff failed to exhaust her administrative remedies. B. Plaintiff fails to factually establish a hostile work environment based on sex. To establish a hostile work environment claim under Title VII, a plaintiff must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of ... employment and create an abusive working environment.” Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir.2012). A plaintiff must establish that: (1) he or she belonged to a protected group, (2) he or she was subjected to unwelcome harassment, (3) the harassment was based on a protected characteristic, (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of his or her Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 31 of 38 29 employment and create an abusive working environment, and (5) a basis exists for holding the employer liable. Gupta v. Fla. Board of Regents, 212 F.3d 571, 582 (11th Cir. 2000). 1. Dean Bell’s treatment of plaintiff is not connected to plaintiff’s sex. “It is a bedrock principle that not all objectionable conduct or language amounts to discrimination under Title VII.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir.2012) (quotation marks omitted). “Therefore, only conduct that is based on a protected category ... may be considered in a hostile work environment analysis.” Id. (emphasis added) (quotation marks omitted); see also Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 n. 3 (11th Cir.2010) (“[T]he Courts of Appeals have uniformly observed that Title VII is not a civility code, and that harassment must discriminate on the basis of a protected characteristic in order to be actionable.”). “Innocuous statements or conduct, or boorish ones that do not relate to the [age or gender] of the actor or of the offended party (the plaintiff), are not counted.” Jones, 683 F.3d at 1297. During her deposition, plaintiff testified at length that Dean Bell considered her to be incompetent, negligent, unable to effectively lead the architecture department, unable to steer the department through the reaccreditation process, and acknowledged that Bell felt plaintiff had taken credit for her NEH grant proposal. However, none of her complaints related to gender. Trask v. Secretary, Dept. of Veterans Affairs, 822 F. 3d 1179, 1195 (comments or actions that are offensive and belittling, but not based on a protected category, cannot be used to establish hostile work environment claim); see also Bryant v. Jones, 575 F.3d 1281, 1297 (11th Cir. 2009) (“Innocuous statement or conduct, or boorish ones that do not relate to the [sex or gender] of the actor or the offended party (the plaintiff), are not counted.”). Rather, according to plaintiff, Dean Bell was jealous of plaintiff and intimidated by her. A sampling of plaintiff’s testimony follows: Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 32 of 38 30 • Dean Bell sent Provost Fermin a very critical assessment of the architecture department and addressed issues that had been discussed at a meeting between President Johnson, Provost Fermin, and the plaintiff. Fermin depo. 42:2-13, 87:20-23 – 88:1-3. Provost Fermin saw the assessment as not as trying to paint the plaintiff with a negative brush, but rather as bringing him up-to-date and providing information he requested. Fermin depo. 88:4-13.9 • Dean Bell asked the President if she could meet with the plaintiff before she officially arrived at Tuskegee because an architecture department accreditation visit was coming that year, and it was very important to Bell for the department to be prepared and to address the concerns from the previous visit. Bell depo. 105:4-8. Dean Bell verbalized concern to plaintiff about the School of Architecture's upcoming accreditation visit and said the lack of readiness was directly related to plaintiff's leadership of the department. Plaintiff's depo. 81:12-15, 82:21-23. • Plaintiff thinks Dean Bell did not want plaintiff to be employed at Tuskegee because Dean Bell did not feel that plaintiff was qualified to be an interim department chair. Plaintiff's depo. 93:8-12, 176:12-16. Plaintiff thinks that Dean Bell didn't think plaintiff was qualified to do anything plaintiff was doing at Tuskegee. Plaintiff's depo. 176:12-16. Dean Bell's attitude was :I don't really need you here because I don't think you are doing a great job.” Plaintiff's depo. 129:10-12. However, the plaintiff can't say she heard Dean Bell specifically say these things because she was never around when Dean Bell said those things. Plaintiff's depo. 130:12-15. • During a January 2016 meeting, Dean Bell told plaintiff that her services as department head were no longer needed. Plaintiff's depo. 126:11-14.10 However, Dean Bell did not have plaintiff removed as interim department chair. Bell depo. 47:13-15. Plaintiff remained interim department head all the way through the end of her probationary period. Bell depo. 52:11-18. • During monthly faculty meetings, Dean Bell was critical of the state of the department, but she was not specifically critical of plaintiff. Plaintiff's depo. 131:12-19. Dean Bell did not take over the plaintiff’s department head duties or take any duties away from her while she was interim department head. Plaintiff's depo. 132:15-19. 9 Provost Fermin asked Dean Bell what the things were that she saw as major problems in architecture when she came on board because he is not an architecture person. Fermin depo. 87:20-23 – 88:1-3. 10 Plaintiff agrees that Dean Bell had authority to do this. Plaintiff's depo. 310:12-14. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 33 of 38 31 • Dean Bell would send the plaintiff emails listing tasks she was expected to complete and deadlines the tasks needed to be done by. Plaintiff's depo. 144:19-22. Plaintiff does not challenge the legitimacy of these assignments by Dean Bell to her as a department head. Plaintiff's depo. 262:20-23. Plaintiff does not know whether Dean Bell also communicated with other department heads about her expectations. Plaintiff's depo. 146:9-12. • On January 30, 2016, Dean Bell sent plaintiff a memorandum thanking her for her service, stating that she would be posting the department head's position on February 8, 2016, and stating that, during the transitional period, plaintiff would need to meet all teaching and administrative obligations in her role as department head. Plaintiff's depo. 292:1-21. This is within the Dean's discretion and authority. Plaintiff's depo. 293:2-5. • Dean Bell sent plaintiff a memorandum in February 2016 about uncompleted tasks, but plaintiff did not think this was harassment. Plaintiff's depo. 300:17-22. Plaintiff also did not believe the notice from the Dean that she was separating from employment was harassment. Plaintiff's depo. 308:10-13. • Plaintiff believes she and Dean Bell did not get along because plaintiff being a leader intimidated Dr. Bell, because plaintiff had a Florida architectural license, and because plaintiff did not cooperate with Dr. Bell’s directive about signing the release and waiver related to Dr. Bell's grant proposal. Plaintiff's depo. 433:22-23 – 434:1-14, 437:9-11. Plaintiff also believes there was animosity between them because she preceded Bell as interim Dean. Plaintiff's depo. 437:11-14. Plaintiff also believes that Dr. Bell is intimidated by her because plaintiff held a National Council for Architecture registration board certification. Plaintiff's depo. 449:2-11. None of this is related to sex or disability. The record as a whole does not establish a legally actionable hostile work environment claim because plaintiff does not link the allegedly hostile treatment to being a woman. Trask, 822 F.3d at 1196 quoting Jones, 683 F.3d at 1297; Nettles v. LSG Sky Chefs, 211 Fed. Appx. 837, 838 (11th Cir. 2006) (plaintiff’s “failure to show [that] any of these actions were motivated by his race [was] fatal to his harassment claim.”). Despite the voluminous incidents of alleged hostility, there is no evidence that their alleged hostility was motivated by a discriminatory animus regarding the plaintiff’s sex. This is fatal to the plaintiff’s claim. See id; Reeves, 594 F.3d at 809, n. 3. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 34 of 38 32 2. The conduct is not objectively severe or pervasive. To be actionable, the conduct complained of must be subjectively perceived by the employee as sufficiently severe and pervasive to alter terms and conditions of employment and that subjective perception must be objectively reasonable. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993). In Harris, the Supreme Court announced a “totality of the circumstances” test to determine whether a “hostile work environment” harassment claim was sufficiently severe and pervasive. To apply the test, the Harris Court suggested that lower courts consider the frequency of the conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance and whether it unreasonably interferes with the employee’s work performance. Harris, 510 U.S. at 23; see also Gupta, 212 F. 3d at 582. A review of the Eleventh Circuit case law shows that the conduct complained of by plaintiff is not sufficiently severe or pervasive to establish a hostile work environment. See Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1301 (11th Cir. 2007) (“Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive.”); Gupta, 212 F.3d at 584-86 (employer's conduct not sufficiently severe or pervasive when conduct included telling plaintiff she was beautiful, calling her at home and asking her if she was in bed, staring at her, repeatedly asking her to lunch, touching her jewelry, touching her on the knee, unbuttoning his pants and tucking in his shirt in her presence, and touching the hem of her dress); Mendoza v. Borden, Inc.,195 F.3d 1238, 1247-48 (same conclusion where employer told plaintiff, “I'm getting fired up,” rubbed his hip against hers while touching her shoulder and smiling at her, made sniffing noises while staring at her groin, and followed her constantly and stared at her); Dar Dar v. Associated Outdoor Club, Inc., 201 Fed. Appx. 718, 721 (11th Cir. 2006) (holding that seven instances of alleged harassment “were neither sexual in nature or based on Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 35 of 38 33 [plaintiff’]s sex” as required to support claim of hostile work environment sexual harassment under Title VII). Because no reasonable juror could conclude that the conduct complained of is sufficiently severe or pervasive to affect the terms, conditions, and privileges of plaintiff’s employment, plaintiff’s Cold and Hostile Work Environment claim fails as a matter of law. C. Plaintiff fails to establish a retaliatory harassment claim. To establish a prima facie case of a retaliatory harassment, plaintiff must prove (1) she engaged in protected activity; (2) after doing so, she was subjected to unwelcome harassment; (3) her protected activity was a “but for” cause of the harassment; (4) the harassment was sufficiently severe or pervasive to alter the terms or conditions of her employment; and (5) a basis exists for holding her employer liable either directly or vicariously. Swindle v. Jefferson Cnty Comm’n., 593 F. App’x 919, 929, n. 10 (11th Cir. 2014); Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012)). To the extent plaintiff asserts a claim of retaliatory harassment under Title VII, the claim fails because plaintiff does not establish elements (2)-(4). Initially, plaintiff does not allege in the complaint or describe in her deposition any Title VII protected conduct occurring before the decisions at issue. Although the Complaint references her EEOC charge (Doc. 36-1, ¶ 20) and a letter written by plaintiff’s former attorney (Doc. 36-1, ¶19), this conduct occurred after the tenure decision, after Tuskegee set the end date of plaintiff’s probationary appointment, and after all of the alleged hostility by Dean Bell. See e.g. Plaintiff’s depo. Ex. 12 (TU/Daya Taylor 1205); Martinez Decl. at 6, (TU/Daya Taylor 2392). Accordingly, plaintiff cannot establish that her alleged protected conduct caused or motivated Dean Bell’s alleged harassment. See Swindle, 593 Fed. Appx at 929, n. 10. Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 36 of 38 34 Moreover, as explained in Section III(B)(2) above, plaintiff cannot establish that the alleged harassment was sufficiently severe or pervasive to alter the terms or conditions of her employment. CONCLUSION For the foregoing reasons, Tuskegee requests that the Court grant its Motion for Summary Judgment and dismiss plaintiff’s claims with prejudice. Respectfully submitted, /s/ Lisa Karen Atkins Lisa Karen Atkins (ASB-3775-074H) Josh C. Harrison (ASB-3326-I72A) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 420 North 20th Street, Suite 1900 Birmingham, AL 35203 Tel.: (205) 328-1900 Fax: (205) 328-6000 lisa.atkins@ogletreedeakins.com josh.harrison@ogletreedeakins.com Attorneys for Tuskegee University Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 37 of 38 35 CERTIFICATE OF SERVICE I hereby certify that on the 1st day of August, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will automatically send notification of such filing to the following: Julian McPhillips Joseph C. Guillot MCPHILLIPS SHINBAUM, L.L.P. 516 South Perry Street Montgomery, AL 36104 julianmcphillips@msg-lawfirm.com joegwork@icloud.com /s/ Lisa Karen Atkins OF COUNSEL Case 3:16-cv-00991-WKW-WC Document 56 Filed 08/01/18 Page 38 of 38
