Byrne v. Yale University, Inc.
Filing
120
ORDER and MEMORANDUM OF DECISION granting in part and denying in part 70 Defendant's Motion for Summary Judgment. The parties are directed to contact the Court within 14 days if they intend to request a referral to a magistrate judge for a settlement conference. Signed by Judge Vanessa L. Bryant on 03/27/2020. (Diamond, Matthew)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SUSAN BYRNE
Plaintiff,
v.
YALE UNIVERSITY, INC.
Defendant.
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No. 3:17-CV-1104 (VLB)
March 27, 2020
MEMORANDUM OF DECISION ON DENYING IN PART AND GRANTING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Susan Byrne (“Plaintiff” or “Professor Byrne”) brings this action for
claims of retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e, et seq., the Connecticut Fair Employment Practices Act (“CFEPA”),
Conn. Gen. Stat § 46a-60 et seq., and common law claims for breach of contract
and negligent misrepresentation arising from her employment as a faculty member
at Yale University (the “Defendant” or “University” or “Yale”). The Defendant
moves for summary judgment pursuant to Fed. R. Civ. P. 56. [Dkt. 70-1 (Def. Mem.)].
For reasons that follow, the Court GRANTS Defendant’s motion in part and DENIES
in part.
Background
The following facts are taken from the Local Rule 56 statements of material
facts and evidence cited by the parties. The facts are read in the light most
1
favorable to the non-movant, Professor Byrne. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
Plaintiff was hired as an Assistant Professor on Term in Yale University’s
Department of Spanish and Portuguese (the “Department”) starting in the Fall 2008
semester. [Dkt. 70-44 [Def. D. Conn. Civ. L. R. 56(a) statement ¶ 1]; See also [Def.
Ex. 2, (02/19/2008 offer letter)]1. Plaintiff was promoted to Associate Professor on
Term in July 2013, following the publication of her second book, LAW AND HISTORY
IN
CERVANTES’ DON QUIXOTE (2012), the previous year. [Def. D. Conn. Civ. L. R. 56(a)
statement ¶¶ 1,3]; See [Def. Ex. 8 (09/26/2013 email from Adorno to Miller)]. Plaintiff
was reviewed for promotion to Professor with tenure during her eighth year. This
matter arises from Plaintiff’s tenure review, starting in the Spring 2015 semester.
[Def. Ex. 17 (03/30/2015 Adorno letter to Byrne.)].
A. Yale University’s structure and tenure process
At the time of Plaintiff’s tenure review, there were five senior faculty
members in the Department: Rolena Adorno, Roberto González Echevarría, Anibal
González-Pérez, David Jackson, and Noel Vallis. [Def. D. Conn. Civ. L. R. 56(a)
statement ¶ 2]. The Department chair, Professor Adorno, reported to the Dean of
Faculty of Arts & Sciences, Tamar Gendler. [Pl. Ex. 156 (Polak Depo.) at 4:8-6:16].
1
For ease of reference, exhibits will refer to evidentiary exhibits included with the
Defendant’s Motion for Summary Judgment [Dkt. 70] and Plaintiff’s Opposition
[Dkt. 81] by exhibit numbers only. i.e. [Def. Ex.1] and [Pl. Ex. 2]. Citation to the
Defendant’s. D. Conn. Civ. L. R. 56(a) statement is applicable where the parties
agree as to the fact stated.
2
Dean Gendler reports to Provost Benjamin Polak, who in turn reports to the
University’s president. Id.
Yale sets a high standard for tenure: “Tenured faculty at Yale are expected
to stand among the foremost leaders in the field throughout the world.” [Def. Ex.
16 (“Yale FAS Steps for promotion…”)]. The Yale Faculty Handbook (Jul. 1, 2014
ed.)[Def. Ex. 6 and Pl. Ex. 2] states that “[c]onsideration for tenure emphasizes the
impact and continuing promise, at the very highest levels, of the candidate’s
research and scholarship…” [at 31-2].
The tenure process for Faculty of Arts and Sciences (“FAS”) is governed by
a protocol referred to at Yale as “FASTAP.” [Pl.
Ex. 2 (“FAS Ladder Faculty
Promotion Handbook, ed. Dec. 2015”)]; [Def. Ex. 16 (“Yale FAS Steps for
promotion…”)]. The process begins with the department chairperson notifying the
candidate of the process by letter in March of the preceding academic year. [Def.
Ex. 16 at 2]. By the end of March break, the candidate must submit: a detailed
curriculum vitae, the names of up to three individuals who might serve as “arm’s
length” external referees to assess the candidate’s work and up to three individuals
who the candidate believes will not offer a fair assessment of their work, and a brief
statement of research interest to guide the department in selecting referees. Id.
Then, the department chair forms a departmental faculty review committee
among those eligible to vote on the tenure case, which is submitted to the Area
Committee and the FAS Dean for approval. Id. The departmental faculty review
committee then selects 10-15 outside scholars, who must be “…leading
3
scholars…,” and subject to additional qualifications. Id. at 3. The department
faculty review committee also identifies three comparison candidates who are
“stars-rising or established-of the field broadly conceived.” Id. This information is
submitted by the department chair to the Area Committee and to the FAS Dean for
approval. Id.
The tenure candidate then uploads their materials in August for distribution
to the approved external referees who agreed to write an evaluation letter. Id. at 57. The candidate’s materials and the external referees’ evaluation letters are
reviewed and discussed by the departmental faculty review committee for the
purposes of making a recommendation to the department’s faculty for a vote. Id. at
8. All eligible tenured faculty members may vote at the formal department meeting.
[Faculty Handbook at 37]. Id. Voting is conducted by secret ballot. Id. Professor
Byrne’s tenure case did not progress past the departmental vote. [Def. D. Conn.
Civ. L. R. 56(a) statement ¶¶ 23-24]
If the departmental vote was favorable, Plaintiff’s tenure case would proceed
to the Humanities Area Committee, then the Joint Board of Permanent Officers, and
then the Yale Corporation for additional review. [Pl. Ex. 2 at 23, figure 6]; [Def. D.
Conn. Civ. L. R. 56(a) statement ¶ 42].
B. Events leading up to the tenure review
Plaintiff’s brief erroneously cites the standard for promotion to Associate
Professor with Tenure [Dkt. 81 (Pl. Opp.) at 3] (citing to page 32 of the Faculty
Handbook). Plaintiff was promoted to Associate Professor on Term, the standard
4
for which is on page 31 of the Faculty Handbook. See Def. Ex. 5 (FAS Departmental
Case Summary, for Professor Byrne’s Promotion to Associate Professor of
Spanish & Portuguese on Term for four years). For promotion to Associate
Professor on Term “…candidates must present significant published research and
scholarship representing early demonstrations of disciplinary and interdisciplinary
leadership…” [Faculty Handbook at 31]. The distinction is significant; unlike the
standard for associate professor with tenure, the department need not be confident
of the candidate’s likelihood for promotion to full professor to promote the
candidate to associate professor on term.
The parties dispute the characterization of the Department’s prior
assessment of Professor Byrne’s scholarship during her candidacy for promotion
to associate professor on term. Compare [Dkt. 70-1 (Def. Mem.) at 11-12]; [Pl. Ex. 2
(Byrne Aff.) at ¶ 16.]. Nevertheless, she was unanimously approved for promotion
by the Department and from the Deans and the Humanities Advisory Committee.
[Pl. Ex. 40 (05/10/2013 Email from Adorno to Byrne informing her of the favorable
votes)].
Two months after her promotion, Plaintiff sought Associate Professor Leave
(“APL Leave”) to work on a fourth book. [Def. D. Conn. Civ. L. R. 56(a) statement ¶
7]; [Def. Ex. 7 (09/30/2013 E-mail from Adorno to Miller discussing Byrne’s APL
proposal)]. Professor Adorno’s email to Dean Mary Miller summarizes criticism
from herself and Professors González Echevarría and Vallis, wherein she states
that “…independently we found it quite poor..[and]…quite inadequate.” Id. Plaintiff
5
resubmitted the proposal the following year. [Def. D. Conn. Civ. L. R. 56(a)
statement ¶ 7].
Plaintiff submitted a third draft of the proposal in November 2014, which was
also denied. [Def. D. Conn. Civ. L. R. 56(a) statement ¶ 8]; [Def. Ex. 11 (Byrne APL
proposal)]. Plaintiff vehemently disagreed with the criticism of the revised APL
proposal and responded with a dear colleague letter the next day. [Def. Ex. 10].
Plaintiff testified that the denial of her APL leave was the first instance that
Professors Adorno, González Echevarría, and Vallis
directed what she
characterized as anger towards her. [Def. Ex. 4 (Byrne Depo.) at 88:1-7].
Plaintiff met with Yale College Dean Mary Miller in May of 2014 to discuss
whether Professor Adorno should remain chair of the Department as part of a
routine three year review process. [Def. Ex. 4 (Byrne Depo.) at 11:21-14:18, 28:125]. Plaintiff objected to Professor Adorno remaining the Department’s chair
because of ongoing conflicts among the faculty and graduate student complaints.
[Id. at 28:1-12.].
In February 2015, Professor Byrne attended a university meeting regarding
the tenure system. [Pl. Ex. 12 (02/06/2015, Byrne email to Lofton)]. In a follow-up
email, Professor Byrne complains about the FASTAP tenure system and hostility
among three senior members of the faculty to granting tenure generally. Id. She
states that her “…comments yesterday related to the problem of senior colleagues
who have simply decided that they will never grant tenure to anyone, irrespective
of the merits.” Id. She cites the example of a male colleague in the Department who
6
received twelve positive letters from external reviewers but was denied tenure on
a 3-2 vote. Id.
Plaintiff suggests that the administration intervene, noting her upcoming
tenure review. Id. Plaintiff writes that “…they are desperately trying to “create” a
reason to deny me tenure where (and because) none exists.” Id. (quotations and
parenthetical in original). Professor Lofton forwarded the email to Dean of
Humanities, Amy Hungerford. Id. None of this exchange references sexual
harassment or discrimination. Id.
On March 6, 2015, an anonymous letter purporting to be on behalf of
graduate students was distributed to the Department’s faculty members and
administration. [Pl. Ex. 46 (anonymous letter)]. It contains five grievances related
to the negative atmosphere within the Department. Id. The final numbered
grievance alleges that Professor González Echevarría made offhand comments to
female graduate students and that Professor Adorno turned a blind eye to sexual
harassment. Id.
Two weeks later, Provost Polak and Deans Gendler and Cooley announced
a review of the “learning and work environment” in the Department (hereinafter the
“Climate Review”), which was conducted by Attorneys Jamaal Thomas of the
University’s Office of Equal Opportunity Programs and Barbara Goren, an outside
attorney. [Pl. Ex. 7, (Climate Report) at 3]. Attorneys Goren and Thomas interviewed
57 witnesses, over 100 hours. Id. at 2.
7
A week after the Climate Review commenced, Yale Daily News published an
article written by an undergraduate student about the anonymous letter. [Pl. Ex.
48]. The article quotes Professors González-Pérez, Poole, and Byrne. Id. The article
states that: “Byrne said she heard harassing comments made by professors to
colleagues and to students, though she denied naming any perpetrators. She
added that since December-when all faculty and staff received a memo asking them
to report inappropriate behavior they witnessed-she has not seen any such
behavior.” Id. The article also quotes Plaintiff’s concerns about the tenure system
generally, but that she also described many points in the anonymous letter as
“gross exaggerations,” and some “fully inaccurate.” Id. Plaintiff emphasized that
she was not involved in the anonymous letter. Id.
Shortly after the anonymous letter and news article, Professor Adorno, as
Department chair, requested that Plaintiff submit her preliminary tenure dossier,
with the final materials due August 18, 2015, pursuant to FASTAP. [Pl. Ex. 87
(03/30/2015 Adorno letter to Byrne)].
On April 1st, Plaintiff sent a letter to Professor Adorno, copied to the
Department’s tenured faculty, the Provost, and several deans, demanding that
Professors Adorno and González Echevarría recuse themselves from all matters
related to her candidacy for tenure pursuant to the conflict of interest clause of the
departmental voting provision in the Faculty Handbook. [Def. Ex. 12 (recusal
letter)](citing Faculty Handbook at 37). Like Plaintiff’s email to Professor Lofton,
Plaintiff alleges that Professors Adorno and González Echevarría are predisposed
to oppose her tenure because of a uniform view that “no one will ever get tenure in
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our department,” but does not raise any claims of personal animus or sexual
harassment. Id.
In a joint letter, Professors González Echevarría and Adorno refused to
recuse themselves from the Department’s vote. [Def. Ex. 14 (04/13/2015 Adorno
letter to Byrne)]. However, Professor Adorno did not chair Plaintiff’s departmental
review committee. The parties dispute whether Professor Adorno voluntarily
recused herself or whether Dean Gendler recused her pending the completion of
the climate report. [Def. D. Conn. Civ. L. R. 56(a) statement ¶ 11]; [Pl. Obj. to Def. D.
Conn. Civ. L. R. 56(a) statement ¶ 11]. The evidence on the issue is inconclusive.
See [Pl. Ex. 11 (administration’s email correspondence on recusal issue)].
The following months show a deterioration in the relationship between
Plaintiff and three of the senior professors in the Department: Professors Adorno,
González Echevarría, and Valis. The collective email correspondence reflects deepseated, mutual distrust and animosity regarding the Plaintiff.
Professors Adorno, González Echevarría, and Valis suspected that Plaintiff
was the author of the anonymous letter fairly early in the Climate Review,
suggesting that it was related to her upcoming tenure review. [Pl. Ex.50 (03/08/15
email
Adorno
to
Vallis,
Vallis
repl.)](“…Roberto
expects
the
name
of
Sue”)(“Roberto is no doubt right. Another learning curve: tenure complaints.”)
Plaintiff testified that two weeks after the recusal letter, Professor Adorno
“blew up and said, you’re the one to blame for the anonymous graduate student
letter.” [Def. Ex. 4 (Byrne Depo) at 200:9-23]. The Climate Review report also finds
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that the anonymous letter provoked strong emotions among senior faculty; one
senior professor stated that Professor Adorno “literally pointed a finger at Prof.
Byrne and Prof. Poole at a faculty meeting and said, ‘You caused this.’” [Pl. Ex. 7
(Climate Report) at 20].
Plaintiff was interviewed by Attorneys Thomas and Goren for the Climate
Review on May 4, 2015. [Pl. Ex. 8 (Scheduling email)]. Plaintiff testified that she told
the attorneys about four instances of alleged sexual harassment by Professor
González Echevarría directed towards Plaintiff:
1. During her first year at the University, Professor González Echevarría
approached her from behind and played with her hair;
2. On May 8, 2014, he kissed her on the mouth without consent at a party for
Mary Miller;
3. That month he also allegedly made a comment about engaging in sexual
activity in a standing position following his hip surgery; and
4. In October 2014, he directed her to sit on a two-person couch which had
a pillow on a side that would have directed her to sit on his lap.
[Pl. Ex. 149 (Byrne Depo.) at 44:5-24, 53:2-55:12, 61:7-65:25]
Later that summer, in an email exchange between Professor Adorno and
another faculty member, Professor Adorno suggests that Professor Byrne was
engaged in “evil-doings” after her APL proposal was denied. [Pl. Ex. 63 (07/16/2015,
Adorno email to Stith)]. Adorno speculates about what Plaintiff told Attorneys
Thomas and Goren and states that it may result in adverse consequences for
Adorno. Id. (“Boy, this could really add up to a lynching…”).
Meanwhile, Plaintiff’s tenure case proceeded through the summer and into
the fall semester. In July 2015, the departmental review committee was formed with
input from Professor Adorno, consisting of Professors Vallis and David Jackson
10
from the Department, and Professors Howard Bloch and Giuseppe Mazzotta from
French and Italian, respectively. [Def. D. Conn. Civ. L. R. 56(a) statement ¶ 12].
Professor Adorno recommended Professor González Echevarría for membership
on the committee, but he was not selected. [Pl. Ex. 101 (04/11/2015 email from
Adorno to Mangan suggesting Vallis, Mazzota and González Echevarría].
Professor Vallis and Dean Hungerford proceeded with the FASTAP steps for
securing external referees. [Def. D. Conn. Civ. L. R. 56(a) statement ¶ 14]. The
Department ultimately received eight external referee letters. Id. ¶ 16.
In December 2015, Professors Adorno and Vallis attended a meeting in the
Provost’s office to discuss the completion of the Climate Review. [Pl. Ex. 155 (Stith
Depo) at 42:5-43:9]. The meeting outline covers, inter alia, reports of sexual
harassment, but notes that “the University has a separate process for the
adjudication of complaints regarding sexual misconduct.” [Pl. Ex. 147]. The
meeting outline also addresses concerns about potential retaliation. Id.
Professor Adorno’s notes for this meeting expressly address her view that:
Plaintiff created the anonymous letter, that the Department was harmed by the Yale
Daily News Article and the Climate Review, Plaintiff was likely untruthful to
Attorneys Goren and Thomas, and that Plaintiff’s actions should not result in
Professors Adorno or González Echevarría’s recusal from her tenure vote because
it would erode academic freedom. [Pl. Ex. 68].
Around the same time, Attorney Thomas asked Plaintiff if she would be
willing to participate in a Title IX investigation into the sexual harassment
11
allegations against Professor González Echevarría. [Def. Ex. 5 (Byrne Depo) at 78:819]. Plaintiff testified that she told Stephanie Spangler, the University’s Title IX
coordinator, that she did not want to bring a Title IX claim in her own name, noting
that her complaint concerned more “intellectual harassment,” but Plaintiff
consented to her name being used in the complaint. Id. at 72:8-73:10.
Plaintiff was interviewed by the University’s Title IX coordinators four times,
starting in December 2015. Id. at 70:16-25. Plaintiff repeated the allegations that she
previously told Attorneys Thomas and Goren during the Climate Review
investigation. Id at. 78:8-17. Plaintiff testified that she is unaware of any direct
evidence that any of the University’s Title IX staff told Professor González
Echevarría about her allegations, but, in a subsequent meeting with Title IX
personnel, she was told that Professor González Echevarría responded to her
allegations. Id. at 73:11-19.
On February 3, 2016, the departmental review committee conferred to review
Plaintiff’s dossier and external referees’ letters. [Def. Ex. 23 (02/03/2016, Vallis
meeting sum.)]. Professors Vallis, Mazotta, and Bloch voted against recommending
Plaintiff for tenure; Professor Jackson voted in favor. Id. At his deposition,
Professor Bloch cited scholarly reservations held by two or three of the eight
external referees. [Def. Ex. 23 (Bloch Depo.) at 36:8-37:43.]. Professor Mazotta held
a similar sentiment. [Def. Ex. 25 (Mazotta Depo.) at 18:10-20:21].
The Department’s tenured faculty met and voted on Plaintiff’s tenure
candidacy on February 9, 2016. [Def. Ex. 25 (02/09/2016, Vallis meeting sum.)].
12
Professors Adorno, González Echevarría, and Vallis voted against granting tenure;
Professors Jackson and González-Pérez voted in favor. Id. Professor Vallis’s
meeting notes reflect a tense exchange. See Id. at 2 (“…launched baseless
allegations of non-transparency and unfairness in the evaluation of SB’s
candidacy.”). Criticism of Plaintiff’s candidacy primarily concerned her third book,
FICINO IN SPAIN (2015), the quality of her writing, and the external reviews. Id. at 2-6.
FAS Dean of Academic Affairs Jack Dovidio collected the ballots and counted the
votes. Id.
The following month, Plaintiff appealed the denial of her recusal request and
the Department’s adverse vote to Provost Polak, alleging, inter alia, retaliation for
speaking out against sexual harassment and discrimination. [Pl. Ex. 109 (Byrne
Appeal-recusal, 03/02/2016)]; [Pl. Ex 23 (Byrne Appeal-tenure vote, 03/08/2016)].
Provost Polak then formed a Faculty Review Committee, pursuant to Section III.L.3
of the Faculty Handbook, to investigate the circumstances of Plaintiff’s
consolidated appeals. [Pl. Ex. 123 (07/25/2016, Faculty Review Committee report to
Provost)].
Pursuant to the Faculty Handbook, the Faculty Review Committee has
limited purview into a tenure decision. [Faculty Handbook at 18-21]. For example,
the Provost will reject any complaint based on the professional judgment of the
department. Id. at 18. The “Review Committee…will deliberate in closed session
and will present to the Provost a written report stating its findings of fact and
conclusion about whether University policy has been violated or the appointment
or promotion was not fairly or adequately considered.” Id. at 20.
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Here, the Faculty Review Committee undertook thirteen interviews and
concluded that Plaintiff’s tenure case complied with FASTAP procedures and was
decided on the merits. [Pl. Ex. 123 (07/25/2016, Faculty Review Committee report to
Provost)]. The committee specifically found no evidence of retaliation. Id. No
reference is made to the University’s recusal policy. Id. The Provost adopted their
report on August 23, 2016 and provided Professor Byrne with an unpaid leave of
absence to teach elsewhere until her faculty appointment expired on July 30, 2017.
[Pl. Ex. 125 (08/23/2016, Polak letter to Byrne)].
Legal Standard for Summary Judgment
Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of proving
that no genuine factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d
98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court
is required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Electric Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). This means that “although the
court should review the record as a whole, it must disregard all evidence favorable
to the moving party that the jury is not required to believe.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 151 (2000); see Welch-Rubin v. Sandals Corp.,
No. 3:03-cv-00481, 2004 WL 2472280, at *4 (D. Conn. Oct. 20, 2004) (“At the
summary judgment stage of the proceeding, [the moving party is] required to
14
present admissible evidence in support of their allegations; allegations alone,
without evidence to back them up, are not sufficient.”) (citing Gottlieb, 84 F.3d at
518); Martinez v. Conn. State Library, 817 F. Supp. 2d 28, 37 (D. Conn. 2011). Put
another way, “[i]f there is any evidence in the record that could reasonably support
a jury's verdict for the nonmoving party, summary judgment must be denied.” Am.
Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315–16
(2d Cir. 2006) (internal quotation marks and citation omitted).
A party who opposes summary judgment “cannot defeat the motion by
relying on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cnty
of Orange, 84 F.3d 511, 518 (2d Cir. 1996). Where there is no evidence upon which
a jury could properly proceed to find a verdict for the party producing it and upon
whom the onus of proof is imposed, such as where the evidence offered consists
of conclusory assertions without further support in the record, summary judgment
may lie. Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726–27 (2d Cir.
2010).
Analysis
Defendant moves for summary judgment on Plaintiff’s retaliation claims
because: (1) some of Plaintiff’s generic complaints are not protected activity, (2)
Yale can establish a legitimate non-retaliatory basis for denying Plaintiff’s tenure,
(3) Plaintiff cannot establish pretext and cannot show a retaliatory motive, and (4)
15
Plaintiff cannot establish a prima facie case of retaliation as to denial of APL. [Dkt.
70-1 (Def. Mem.) at 18-33].
Defendant moves for summary judgment on Plaintiff’s breach of contract
claim arguing that: (1) Plaintiff cannot establish breach because Plaintiff cannot
establish a “Conflict of Interest” to mandate recusal, and (2) Plaintiff cannot
establish damages because she cannot prove that she would have prevailed at the
additional levels of review in the tenure process. Id. at 34-40.
The
Defendant also argues
that Plaintiff cannot establish negligent
misrepresentation because Plaintiff cannot show reasonable reliance on the
Defendant’s statements. Id. at 44-16.
1. Retaliation under Title VII and CFEPA
First, the Court emphasizes that Title VII does not impose a “general civility
code” on the workplace. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 81 (1998). Nor, does the “…jury sit as a “super personnel committee” to second
guess business decisions or an employee’s disagreement with his employer’s
assessment of his qualifications…” See Zimmitti v. Aetna Life Ins. Co., 64 F. Supp.
2d 69, 80, n. 18 (D. Conn. 1999).
The concern about second guessing employers’ business judgment and
policing workplace civility is more acute in the context of a university’s tenure
decision. The Second Circuit has further emphasized that:
A university's prerogative to determine for itself on academic grounds who may
teach is an important part of our long tradition of academic freedom. Although
16
academic freedom does not include the freedom to discriminate, this important
freedom cannot be disregarded in determining the proper role of courts called
upon to try allegations of discrimination by universities in teaching
appointments. The Congress that brought educational institutions within the
purview of Title VII could not have contemplated that the courts would sit as
Super–Tenure Review Committee[s].
Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980) (internal quotation and citations
omitted).
Tenure decisions are fundamentally tied to subjective professional
judgments. Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir. 1984) (contrasting the
tenure process to other employment decisions). The Second Circuit’s opinion in
Zahorik captures some of the tension at issue in Plaintiff’s tenure review:
[T]enure decisions are a source of unusually great disagreement. Because
the stakes are high, the number of relevant variables is great and there is no
common unit of measure by which to judge scholarship, the dispersion of
strongly held views is greater in the case of tenure decisions than with
employment decisions generally. As the present record amply
demonstrates, arguments pro and con are framed in largely conclusory
terms which lend themselves to exaggeration, particularly since the
stauncher advocates on each side may anticipate and match an expected
escalation of rhetoric by their opponents. Moreover, disagreements as to
individuals may reflect long standing and heated disputes as to the merits
of contending schools of thought or as to the needs of a particular
department.
Zahorik, 729 F.2d at 93 (2d Cir. 1984)
Congress did not exempt universities’ tenure decisions from Title VII. The
Court must “steer a careful course between excessive intervention in the affairs of
the university and the unwarranted tolerance of unlawful behavior.” Rajaravivarma
v. Bd. of Trustees for Connecticut State Univ. Sys., 862 F. Supp. 2d 127, 148 (D.
Conn. 2012) (citing Powell v. Syracuse Univ., 580 F. 2d 1150, 1154 (2d. Cir. 1978).
To do so in “the context of disagreement about the scholarly merits of the
candidate’s academic work…[Plaintiff must show that] disagreements or doubts
17
are influenced by forbidden considerations such as sex or race.” Zahorik, 729 F.2d
at 94.
Title VII prohibits employers from retaliating against employees who oppose
discriminatory practices, file complaints of discriminatory treatment, or participate
in an investigation. 42 U.S.C. § 2000e-3(a). When analyzing retaliation claims,
courts apply the McDonnell Douglas burden-shifting framework. Hicks v. Baines,
593 F.3d 159, 164 (2d Cir. 2010); see also McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–05 (1973). Initially, the plaintiff must establish a prima facie case by
demonstrating: “(1) participation in a protected activity; (2) that the defendant knew
of the protected activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment action.”
Hicks, 593 F.3d at 164 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166,
173 (2d Cir. 2005)).
Thereafter, there is a presumption of retaliation that the defendant must
rebut by articulating “a legitimate, non-retaliatory reason for the adverse
employment action.” Jute, 420 F.3d at 173. Finally, if the defendant proffers such
a reason, “the presumption of retaliation dissipates and the employee must show
that retaliation was a substantial reason for the adverse employment action.” Ibid.
Plaintiff must prove that the University took adverse retaliatory action
“because” a plaintiff engaged in protected activity under Title VII. Univ. of Texas
Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). “‘[B]ut-for’ causation does not,
[however,] require proof that retaliation was the only cause of the employer's
18
action, but only that the adverse action would not have occurred in the absence of
the retaliatory motive.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90–
91 (2d Cir. 2015).
A. Protected activity
It is well established that, “to prove that [s]he engaged in protected activity,
the plaintiff need not establish that the conduct [s]he opposed was in fact a
violation of Title VII.” Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons,
842 F.2d 590, 593 (2d Cir. 1988). Rather, the employer must have been able to
reasonably understand that Plaintiff’s opposition or testimony was directed at
conduct prohibited by Title VII. Rajaravivarma, 862 F. Supp. 2d at 164.
Here, Defendant argues that that Plaintiff’s complaints about the tenure
process and the Department are “general allegations of mistreatment, wholly
unrelated to any protected class.” [Dkt. 70-1 (Def. Mem.) at 20-22]. The Court
agrees. Plaintiff’s criticism of the Department at the University-wide FASTAP
meeting in early 2015, Provost Polak’s FASTAP “listening session,” and objection
to Professor Adorno remaining Department Chair could not reasonably implicate
any Title VII concerns because there is no reference or implication of any protected
class.
Defendant argues that Plaintiff cannot establish that her communications
with the student newspaper reporter constitute protected activity because they
repeat generalized harassment allegations. [Dkt. 70-1 (Def. Mem.) at 22-23]. Plaintiff
urges the Court to permit her to pursue a “perceived protected activity” theory
19
based on the mistaken assumption that Plaintiff authored the anonymous letter.
[Dkt. 81 (Pl. Opp’n.) at 40-42]. The Court need not resolve either issue because the
Plaintiff participated in protected activity when she opposed discrimination during
the University’s investigation into sexual harassment during the Climate Review.
See Littlejohn v. City of New York, 795 F.3d 297, 317 (2d Cir. 2015)(quoting Crawford
v. Metropolitan Government of Nashville & Davis County, 555 U.S. 271, 276 (2009)
(Crawford stated that any activity designed “to resist or antagonize ...; to contend
against; to confront; resist; [or] withstand” discrimination prohibited by Title VII
constitutes a protected oppositional activity”).
B. Knowledge and adverse action requirements
Yale concedes that it had “institutional knowledge” of Plaintiff’s alleged
protected activity. [Dkt. 87 (Def. Rep.)] at 7-8]. Instead, Yale argues that the senior
faculty members lacked knowledge of Plaintiff’s protected activity, which
undercuts claims of causation. Id. Yale does not challenge the “adverse action”
prong of Plaintiff’s prima facie case.
C. Causation
“Proof of causal connection can be established indirectly by showing that
the protected activity was followed closely by discriminatory treatment, or through
other evidence such as disparate treatment of fellow employees who engaged in
similar conduct, or directly through evidence of retaliatory animus directed against
a plaintiff by the defendant.” DeCintio v. Westchester Cty. Med. Ctr., 821 F.2d 111,
115 (2d Cir. 1987) (internal citations omitted). A genuine issue of material fact exists
20
as to whether Plaintiff’s protected activities caused Professors Adorno, González
Echevarría, and Vallis to vote against Plaintiff’s tenure candidacy based on direct
evidence that could be construed to show a retaliatory animus.
First, although these senior faculty members were unaware of precisely what
Plaintiff said during her Climate Review interview, they speculated that Plaintiff’s
statements to the investigators would be averse to their interests. [Pl. Ex. 63
(07/16/2015) Adorno email to Stith]. Professor Adorno speculated that the Climate
Review could lead to her “lynching,” a term used by Clarence Thomas to describe
the consequences of a sexual harassment claim lodged against him after his
nomination to the Supreme Court. Id. Professor Adorno also stated Professor
Byrne was engaged in “evil-doings.” Id.
The Yale Daily News article quoted
Professor Byrne as having said she overheard professors sexually harassing
students and colleagues. [Pl. Ex. 40] Together, they had an intensely negative
reaction to the University’s investigation and openly blamed Plaintiff for initiating
the inquiry, which itself contained the allegation of sexual harassment. See [Pl. Ex.
7 (Climate Report) at 20]. A reasonable jury could draw an inference that Professor
Adorno, as well as her close colleagues in whom she confided and confederated,
would have believed Plaintiff made statements against them both as part of the
climate study and in or prompting the anonymous article published in the Yale
university newspaper, in which she was quoted.
Plaintiff testified that she was told that Professor González Echevarría
responded to her allegations of specific instances of misconduct, and, therefore
assumes that he would have been able to identify her as the source. [Def. Ex. 5
21
(Byrne Depo.) at 73:11-19]. Plaintiff learned this information after the adverse
tenure vote. Id. Professor González Echevarría was notified of the University Wide
Committee on Sexual Misconduct’s proceeding, arising from the Title IX
investigation, on February 18, 2016, after Plaintiff’s tenure vote. [Pl. Ex. 46 (Letter
to González Echevarría regarding UWC investigation)].
A reasonable juror could find a causal link between Plaintiff’s participation
in the Title IX investigation and the adverse tenure vote. Although there is no
evidence to support that any of the senior faculty members voting against her were
aware of the Title IX proceeding at the time they voted, a reasonable jury could infer
they believed she was interviewed because she was quoted in the campus
newspaper article. Construing ambiguities in favor of the Plaintiff, a reasonable
jury could find that the senior faculty members speculated about the content of the
statements to Climate Review investigators concerning sexual harassment and
were angered by her participation in the investigation. This is based on the
commonsense notion that an alleged harasser may not know the precise content
of an accuser’s statement yet still retaliate against them based on the subject’s
assumptions of its adverse content.
A jury could reasonably find a subjective retaliatory intent based on a
culmination of email correspondence concerning the Plaintiff in the ten months
leading up to her tenure vote.
D. Legitimate non-retaliatory explanation
22
Because a reasonable juror could conclude that Plaintiff established a prima
facie case of retaliation, the burden of production shifts to the University to proffer
a legitimate, non-retaliatory basis for the adverse action. Jute, 420 F.3d at 173
Here, the University argues that Plaintiff’s scholarship misses the
exceptionally high mark for tenure at Yale. The University cites Professors
Mazzotta and Bloch’s criticism at the departmental review level and three external
reviews as evidence showing Plaintiff’s academic deficiency. [Dkt. 70-1 (Def. Mem.)
at 6-14].
During the Departmental vote, Professors Vallis, Adorno, and González
Echevarría offered an academic explanation for their position on her tenure
candidacy. [Def. Ex. 25 (Vallis meeting sum., 02/09/2016)]. Professor Adorno, for
example, pointed to shortcomings in Plaintiff’s third book, ON FICINO (2019), which
was the subject of criticism by Professor Mazzota and the external referees. Id.
Professor Echevarría echoed the same criticism that he directed at Plaintiff’s APL
proposal. Id. Professor Vallis shared similar sentiments. Id. Of course, two senior
professors found her tenurable. Id. Without more, this is the type of academic
disagreement contemplated by Zahorik and its progeny.
E. Evidence of Pretext
By proffering a legitimate, non-retaliatory basis for the adverse action “the
presumption of retaliation dissipates,” and the plaintiff must prove “that the desire
to retaliate was the but-for cause of the challenged employment action.” Ya-Chen
23
Chen v. City Univ. of New York, 805 F.3d 59, 70 (2d Cir. 2015) (citing Jute, 420 F. 3d
166 at 173 and Nassar, 570 U.S. at 352).
“Pretext may be demonstrated either by the presentation of additional
evidence showing that the employer's proffered explanation is unworthy of
credence, or by reliance on the evidence comprising the prima facie case, without
more.” Percoco v. Lowe's Home Centers, LLC, 208 F. Supp. 3d 437, 444 (D. Conn.
2016).
The issue of establishing pretext is particularly challenging in the context of
a tenure denial. Any reason given, other than the stated reason, is pretextual by
definition. Fisher v. Vassar Coll., 114 F.3d 1332, 1337 (2d Cir. 1997), abrogated on
other grounds by Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000).
Title VII distinguishes between those reasons that are factually false and those that
are false in order to hide discriminatory or retaliatory motives.
But discrimination does not lurk behind every inaccurate statement.
Individual decision-makers may intentionally dissemble in order to hide a
reason that is non-discriminatory but unbecoming or small-minded, such as
back-scratching, log-rolling, horse-trading, institutional politics, envy,
nepotism, spite, or personal hostility. For example, a member of a tenure
selection committee may support a protégé who will be eligible for tenure
the following year. If only one tenure line is available, that committee
member might be inclined to vote against tenure for a junior faculty member
who is currently eligible for tenure, thereby ensuring that the tenure line
remains open. Any reason given by the committee member, other than the
preference for his protégé, will be false. Furthermore, recommenders and
decision-makers who are governed by such considerations will not advise
the president and regents of the institution that their recommendation or
vote was disingenuous.
Id. at 1337-38 (italics in original)
24
Plaintiff’s evidence of actionable pretext is thin. She herself stated that
senior department members did not want to grant tenure to anyone. She cited the
case of a male professor who was denied tenure before the campus newspaper
article was published and the Title IX investigation commenced. Notwithstanding,
a reasonable jury could still find that the three senior professors’ animosity to
Plaintiff’s candidacy was personal; a reaction to their stated assumptions about
Plaintiff’s role in the Climate Review.
Collaboration between colleagues is expected in any workplace. But, the
Plaintiff produced evidence that could reasonably show or impute a common
retaliatory motive among Professors Adorno, González Echevarría, and Vallis. The
professors conferred to share intensely negative views on Plaintiff’s actual or
assumed involvement in the Climate Review, which again is protected activity
under Title VII, and strategized on a common response to investigators. See [Pl.
Ex. 63 07/16/2015, Adorno email to Stith]. Attorney Thomas, for example, testified
that he was concerned about potential retaliation arising from the Climate Review,
as well as potential collusion. [Pl. Ex 161 (Thomas Depo.) at 104:19-24]. This
concern about retaliation was echoed in the Provost’s meeting notes. [Pl. Ex. 147].
The senior faculty members explicitly link Plaintiff’s participation in the Climate
Review with her tenure candidacy. See, i.e [Pl. 56 (04/14/2015 Valis email to
Adorno); [Pl. Ex. 68 (12/13/2015, Adorno notes for Climate Review meeting)]. The
issue is one of credibility, not whether the professors’ stated reasons are
academically sound.
25
The University presents ample evidence to challenge Plaintiff’s pretext
argument. For example, Plaintiff’s APL leave was denied prior to any protected
activity. Plaintiff’s own testimony about FASTAP and animosity with colleagues
predates her Title VII protected activity. [Def. Ex. 4 (Byrne Depo.) at 88:1-7].
Plaintiff’s promotion to associate professor on term is only marginally related to
her tenurability because a higher standard applies for tenure. Supra at 4-5.
A jury could also find that Plaintiff’s tenure was denied because of partisan
conflicts and generalized personal hostility within the Department, not because she
engaged in any Tile VII protected activity. Plaintiff participated in these conflicts.
See [Dkt. 87(Def. Rep.) Ex. 6 (09/09/14 email from Byrne to Poole)](“She [Professor
Adorno] does not deserve any ounce of honesty from me (sic), particularly nothing
heartfelt”)]. This is precisely the type of gamesmanship and squabbling
contemplated in Fisher v. Vassar Coll., 114 F.3d at 1337.
Plaintiff does not posit an explanation for Professors Bloch and Mazzota’s
views or the critical remarks of two or three of the reviewers. Nevertheless,
Professor Bloch and Mazotta were non-voting members of the committee, so they
were not outcome determinative.
Witness testimony concerning irregularity in a tenure vote can support a
jury’s finding of a retaliatory motive. See Zahorik, 729 F.2d at 93. Here, Professor
Jackson testified that, “in order to make sure they would get the result they wanted,
they [three senior faculty members] came prepared this time” and read statements
at the Department meeting, which departed from the process used during the last
26
tenure review. [Pl. Ex. 154 (Jackson Depo.) at 73:8-14]. Dean Dovidio’s role was
merely to observe the procedure and count votes, and thus was not a substantive
safeguard against retaliation. [Def. Ex. 25 (Vallis meeting sum., 02/09/2016)].
The procedural deviations in the Department meeting cited by the Plaintiff
are relatively minor and standing alone would be insufficient to carry her burden
of showing pretext. See Weinstock v. Columbia Univ., 224 F.3d 33, 45 (2d Cir. 2000).
However, in the context of the stated animosity towards the Plaintiff and her
involvement in the recently concluded Climate Review, a jury could find the
departure from the Department’s custom in prior tenure meetings and the
appearance of a common aim among the three senior faculty members to be
indicative of a retaliatory motive. See Zahorik, 729 F.2d at 93 (“Conventional
evidence of bias on the part of individuals involved may also be available.”) Thus,
a genuine issue of material fact precludes a grant of summary judgment, as this
issue rests substantially on credibility.
Construing ambiguity in favor of the Plaintiff, a reasonable jury could
conclude that Professors Adorno, González Echevarría, and Vallis harbored a
retaliatory motive based on Plaintiff’s opposition to sexual harassment in the
University’s Climate Review, regardless of whether they knew the precise content
that she relayed to the University’s attorneys.
The University’s precautions and appeal process failed to purge potential
retaliation by Professors Adorno, González Echevarría, and Vallis. At issue is
whether the exercise of independent judgment by the Faculty Review Committee
27
is sufficient to negate potential retaliation by the three senior faculty members. The
Court concludes that it does not.
To resolve this inquiry, the Court considers the “cat’s paw theory.” Under
cat’s paw theory, a plaintiff may hold his employer liable for animus of a supervisor
who does not have the authority to make the final employment decision, but instead
manipulates the ultimate decision maker to achieve the adverse action.
Rajaravivarma, 862 F. Supp. 2d at 149 (applying “cat’s paw” to a Title VII tenure
case)(later adopted by the Second Circuit in Vasquez v. Empress Ambulance Serv.,
Inc., 835 F.3d 267, 272 (2d Cir. 2016)).
In Rajaravivarma, the Court declined to apply “cat’s paw” to impute a
discriminatory animus allegedly contained in faculty recommendations when the
university president reached an independent conclusion on the merits of plaintiff’s
tenure portfolio. 862 F. Supp. 2d 127, 161 (D. Conn. 2012)(“Since Plaintiff has not
shown that President Miller's independent assessment of Rajaravivarma's portfolio
and his own conclusion that Rajaravivarma had deficiencies in load credit and
creative activity has been “used as the mechanism to obscure discrimination” the
Court will not endeavor to make its own determinations about such matters as
Rajaravivarma's “teaching ability, research scholarship, and professional
stature”).
Unlike the university president in Rajaravivarma, the Faculty Review
Committee and the Provost were not rendering the same decision as the
Department when considering Plaintiff’s appeal. Instead, the Faculty Review
28
Committee’s limited inquiry was whether the Department complied with FASTAP.
[Pl. Ex. 123 (07/25/2016, Faculty Review Committee report to Provost)]. Thus, the
Faculty Review Committee’s finding that Plaintiff did not suffer retaliation and the
Provost’s adoption of that finding does not establish that the “decision” was made
by an independent person not alleged to have acted retaliatorily. Compare
Rajaravivarma, 862 F. Supp. 2d at 166 (excerpted above). The procedural review
conducted by the Faculty Review Committee does not implicate the type of
scholarly judgments that the Court should refrain from second guessing.
F. Causation under CFEPA
As the parties reference in their briefs, it remains unsettled whether
causation under the CFEPA is analyzed using the “but-for” or “motivating factor”
standard. See Vale v. City of New Haven, 197 F. Supp. 3d 389, 397-99 (D. Conn.
2016) (documenting the controversy with respect to age discrimination claims).
The Court need not weigh in on the debate here because Plaintiff survives summary
judgment under the stricter “but-for” standard for Title VII retaliation.
G. Denial of APL leave
The Court grants Defendant’s summary judgment motion as to alleged
retaliation under Title VII based on denial of APL because Plaintiff cannot establish
a prima facie case on this issue. See [Dkt. 33 (Sec. Am. Compl.) ¶ 109].
First, the parties do not brief the issue of whether denial of sabbatical meets
the threshold showing for adverse action. Even so, Plaintiff cannot establish a
causal link between the denial of APL leave in November 2014 and her subsequent
29
protected activity, beginning in March 2015, because the employer could not have
been aware of the protected activity months before it occurred.
2. Breach of contract claims
Plaintiff’s breach of contract claim rests on two central arguments. First,
Plaintiff alleges that the University breached its contract with the Plaintiff by: (1)
denying her a fair review of the scholarly merits of her tenure case and (2) failing
to recuse any faculty member with a professional or personal conflict of interest.
[Dkt. 33 (Sec. Amend. Compl.) ¶¶ 114-16].
Defendant does not challenge Plaintiff’s argument that the Yale Faculty
Handbook is an employment contract. Rather, Defendant argues that Plaintiff
received a full and fair scholarly review of her candidacy, that the professors’
decisions not to recuse themselves complied with the Faculty Handbook, and
Plaintiff cannot establish damages because she cannot establish that she would
have prevailed at the subsequent levels of tenure review. [Dkt. 70-1 (Def. Mem.) at
34-41]
Whether Plaintiff received the “benefit of the bargain” as to the standard
applied for her tenure review hinges on whether she can establish a retaliatory
motive. Her argument regarding the Faculty Handbook’s conflict of interest
provision addresses a procedural concern.
a.
Breach
30
A faculty manual that sets forth terms of employment may be considered a
binding employment contract. See Magnan v. Anaconda Industries, Inc., 193 Conn.
558, 564 (1984); see also Craine v. Trinity Coll., 259 Conn. 625, 655–56 (2002). In the
absence of express language that definitively states the parties’ obligations, the
determination of what the parties intended to encompass as their contractual
commitments and their compliance therewith are questions of fact for the
jury. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 533 (1999) (“the trial
court correctly submitted to the jury the task of determining the contours of the
parties' intentions”).
In Craine v. Trinity Coll., 259 Conn. at 654–55, the Connecticut Supreme
Court held that a trial judge was correct in declining to instruct the jury that they
should not second guess a university’s academic judgement on tenure for a breach
of contract claim. “A “[u]niversity cannot claim the benefit of the contract it drafts
but be spared the inquiries designed to hold the institution to its bargain.” The
principle of academic freedom does not preclude us from vindicating the
contractual rights of a plaintiff who has been denied tenure in breach of an
employment
contract.”
(citing
Kyriakopoulos
v.
George
Washington
University, 866 F.2d 438, 447 (D.C.Cir.1989)).
Here, there is a genuine issue of material fact as to whether Plaintiff was
entitled to have Professor Adorno and González Echevarría recuse themselves
from her tenure vote. The conflict of interest provision states simply:
31
A member of the faculty who has a personal or professional conflict of interest
concerning an individual on whom a vote is taken must absent himself or herself
from all discussions and all votes taken on that individual.
Faculty Handbook § IV(H)(1) FAS Voting Policies, Voting in Departments and
Programs, at 37 (emphasis added).
The Faculty Handbook does not define a “conflict of interest.” Dean Dovidio
testified that Yale relies on faculty members to recuse themselves and there is no
mechanism, in policy or practice, for enforcement. [Def. Ex. 13 (Dovidio Depo.) at
73:18-24, 74:15-23, 83:20-24.]. But, the language of the provision expresses a clear
mandate: if a conflict of interest exists, the faculty member must recuse
themselves.
Moreover,
there
is
conflicting
evidence
concerning
the
administration’s involvement with Professor Adorno’s recusal from the initial
departmental review committee. See [Pl. Ex. 11 (07/27/2015, email from Gendler to
Dovidio)]).
Whether the University’s reliance on faculty member’s voluntary recusal
complied with this provision is a question of fact. “Interpretation of the
written terms of a contract and the degree of compliance by the parties are
questions of fact to be determined by the jury.” Craine, 259 Conn. at 655–56
(interpreting a faculty manual).
To prevail on breach of contract, Plaintiff would still need to show that a conflict
of interest existed. Again, this term is left undefined and Plaintiff and Defendant
advance competing explanations for the term. [Dkt. 87 (Def. Repl.)12-13]; [Dkt. 81
(Pl. Op.) 33-35].
32
Defendant argues that a conflict could not have existed because Professors
Adorno and González Echevarría did not perceive themselves to have a conflict.
[Dkt. 87 (Def. Repl.) at 38]. There is no textual support for the proposition that Yale’s
Conflict of Interest policy is defined solely by a faculty member’s subjective belief.
Plaintiff points to the broad, circular definition in Merriam Webster’s Dictionary and
administration’s testimony about faculty relationships for the proposition that
“deeply felt emotions or personal opinion” warrant a conflict of interest. [Dkt. 81
(Pl. Opp.) 34-35].
The term “conflict of interest” takes on different meanings in different legal and
ethical codes and contexts. The term is neither self-defining nor self-executing.
The ambiguity of the meaning of the term “conflict of interest” and whether the
administration had the authority to exercise recusal power over faculty members
warrants a genuine dispute of material fact.
C. Damages
Defendant argues that Plaintiff impermissibly speculates that Plaintiff would
have prevailed at the succeeding levels of review had the Department voted
affirmatively. [Dkt. 70 (Def. Mem in Sup) 41-43.]. Plaintiff fails to respond directly to
the argument as to the uncertainty of the outcome, but instead introduces expert
evidence as what her earnings would have been had she been granted tenure. [Dkt.
81 [Pl. Opp. 37-38].
Abney v. Univ. of the Virgin Islands, No. 08-116, 2016 WL 2349108, at *7 (D.V.I.
May 3, 2016), cited by Defendant for the proposition that summary judgment is
33
warranted in a tenure case when damages are speculative, is distinguishable. In
Abney, the plaintiff received a substantial salary increase when he found substitute
employment and sought to recover incidental costs and pain and suffering without
evidentiary support. Id.
Here, Plaintiff adduces expert evidence as to her wage losses because she was
denied tenure. [Dkt. 81 (Pl. Opp. 81] 37-38](citing Pl. Ex. 144 (economist’s report)).
A reasonable jury could find that Plaintiff was denied tenure because the
University’s alleged breach of contract by failing to enforce the conflict of interest
provision and lost wages are reasonably certain to arise from Plaintiff’s resulting
termination.
The Defendant is correct in that Plaintiff cannot reasonably assume that she
would have been entitled to tenure. But, Plaintiff was entitled to the University’s
contractual compliance with the terms of the Faculty Handbook. The issue is not
whether the lost wage damages are speculative, but whether they are proximately
caused by the Defendant’s breach, if breach is established. See Short v. Westport
Nat. Bank, No. 3:09CV1955 VLB, 2014 WL 1316098, at *9 (D. Conn. Mar. 31, 2014)
(discussing the requirement for contract damages to be proximately caused by the
breach).
The Court must, therefore, deny Defendant’s motion for summary judgment as
to count 3 for breach of contract.
3. Negligent misrepresentation
34
Plaintiff argues that there is a genuine issue of material fact as to whether the
Defendant misrepresented to Plaintiff that: 1. that she would have to wait until after
the Climate Review was complete for action to be taken regarding her recusal
request, and 2. that she would receive a fair an unbiased hearing on the merits for
tenure review using scholarship standards previously communicated to her. [Dkt.
81 (Pl. Opp) 52]. The Defendant argues that Plaintiff cannot show justifiable
reliance. [Dkt. 70 (Def. Mem. in Sup. for Sum. J.) 43-46. The Court agrees with the
Defendant.
Under Connecticut law, “[o]ne who, in the course of his business, profession or
employment ... supplies false information for the guidance of others in their
business transactions, is subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he fails to exercise reasonable care
or competence in obtaining or communicating the information.” Craine, 259 Conn.
at 661.
Plaintiff cannot show justifiable reliance on Dean Gendler’s April 2, 2015 email
stating that the FAS Dean’s office would not make any final decisions about the
composition of the review committee or eligibility of department members to
participate in the tenure process until the Climate Review was complete. [Pl. Ex. 17
(04/04/2015, Gendler email to Byrne)]. Plaintiff alleges that Dean Gendler and other
administrators failed to communicate their decision to recuse Professors Adorno
and González Echevarría until it was too late to appeal. [Dkt. 81 (Pl. Opp.) 53-54].
35
Regardless of whether Professors Adorno and González Echevarría voluntarily
recused themselves from the departmental review committee or whether they were
precluded from participating by the University’s administration, Plaintiff received
the relief requested at that stage. Regarding their subsequent participation in her
tenure vote, the Climate Review concluded in November 2015 and she learned that
the Dean would not recuse Professors Adorno and González Echevarría on
January 19, 2015. [Def. 26 (Pl. 03/02/2016 Appeal to Provost) at 15] (“On January
19, Dean Gendler wrote to inform me of her decision to deny my recusal request. It
is that denial that I herein appeal.”). Plaintiff had previously written to Dean Dovidio
on December 15, 2015 seeking an explanation of when the 45-day appeal period
commenced. Id. This all occurred well in advance of Plaintiff’s tenure vote in
February 2016. The Faculty Review Committee and Provost Polak considered
Plaintiff’s appeal on this issue. [Def. Ex. 29 (07/25/2016, Faculty Review Comm.
findings)]. No reasonable juror could find that she was misled as to the
administration’s position on the recusals, as confused as the administration’s
position on that issue may have been.
As to allegations that Plaintiff was misled by prior praise of her scholarship, the
instant case is distinguishable from Craine, 259 Conn. 625. In Craine, the college’s
vague statement of reappointment potentially misled plaintiff into believing that
she should continue to work on a single journal article, instead of breaking it up
into several smaller articles or bringing one of her other projects to final
publication. 259 Conn. at 662 (2002). The plaintiff in Craine was then denied tenure
on account of the quantity of her work. Id.
36
Here, the standard for promotion to Associate Professor on Term is lower than
the tenure standard. Supra 4-5. Plaintiff could not justifiably rely on success in
seeking a term promotion to predict her success in securing tenure or induce any
particular action. Plaintiff does not present evidence showing how reliance on the
aspirational statements contained in the Department’s review for her promotion to
Associate Professor on Term caused her to chart a different course when applying
for tenure.
Accordingly, the Court must grant the Defendant’s motion for summary
judgment on the negligent misrepresentation count.
Conclusion
Based on the forgoing, the Court GRANTS Defendant Yale University’s Motion for
Summary Judgment [Dkt. 70] as to Count 3 of the Second Amended Complaint for
Negligent Misrepresentation and as to Counts 1 and 2 for Retaliation in violation of
Title VII and CFEPA based on the denial of Plaintiff’s Associate Professor Leave.
The Court DENIES Defendant’s motion for summary judgment as to Counts 1 and
2 as it relates to the tenure denial. The Court DENIES Defendant’s motion for
summary judgment as to Count 3 for breach of contract.
IT IS SO ORDERED.
______/s/_______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 27, 2020
37
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