McEvoy v. Fairfield University
Filing
32
ORDER. For the reasons set forth in the attached, the defendant's 24 motion for summary judgment is GRANTED.Signed by Judge Michael P. Shea on 10/29/2019. (Hausmann, Amy)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SHARLENE MCEVOY
No. 3:17-cv-1861 (MPS)
Plaintiff,
v.
FAIRFIELD UNIVERSITY,
Defendant.
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Dr. Sharlene McEvoy brought suit against Fairfield University, alleging age discrimination
in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”).
Fairfield filed a motion for summary judgment. For the reasons discussed below, the motion for
summary judgment is GRANTED.
I.
FACTS
The following facts, which are taken from the parties’ Local Rule 56(a) statements,
supporting exhibits, and briefs, are undisputed unless otherwise indicated.
A. Dr. McEvoy’s Appointment as Director of the Pre-Law Advisory Program
Dr. McEvoy began teaching at Fairfield University, an institution of higher education, in
1986. ECF No. 25 at ¶¶ 1, 4; ECF No. 30-1 at ¶¶ 1, 4. In May 2012, Senior Vice President for
Academic Affairs Dr. Paul J. Fitzgerald sought applications from the faculty to lead a Pre-Law
Advisory Program (“the Program”). ECF No. 25 at ¶ 5; ECF No. 30-1 at ¶ 5. Dr. McEvoy applied,
ECF No. 25 at ¶ 6; ECF No. 30-1 at ¶ 6, and Dr. Fitzgerald appointed her to a three-year term as
Director of the Program on July 3, 2012, ECF No. 25 at ¶ 7; ECF No. 30-1 at ¶ 7.
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In his appointment letter, Dr. Fitzgerald said that he was impressed with Dr. McEvoy’s
proposals; he specifically highlighted her proposals to (1) form a Pre-Law Club; (2) gather and
analyze data on GPAs, LSAT scores, and law school admission statistics; (3) increase the number
of internships; and (4) reconnect with Fairfield alumni. ECF No. 27-6 at 2. He advised Dr. McEvoy
that the Office of Alumni Relations, the Office of Institutional Research, and the Advancement
Division,1 as well as an individual named Cath Borgman, would be helpful resources as she
implemented these proposals. Id.
B. Dr. McEvoy’s First Term as Director of the Program
The 2012-2013 academic year was Dr. McEvoy’s first year as Director of the Program.
ECF No. 25 at ¶ 7; ECF No. 30-1 at ¶ 7. At the end of the year, she submitted an annual report
about the Program to Dr. David Sapp, who oversaw the Program in his role as Associate Vice
President for Academic Affairs. ECF No. 27-7 at 2-6; ECF No. 27-1 at ¶ 11. After reviewing the
report, Dr. Sapp requested additional information from Dr. McEvoy about student LSAT scores
and the impact of the LSAT boot camp on those scores; the students participating in internships,
the job shadow program, and law advising; and Dr. McEvoy’s goals for the next two years. ECF
No. 27-11 at 2-3. Dr. McEvoy provided him with this additional information on July 23, 2013 by
return email, ECF No. 27-11 at 2-3, but did not include the bulk of this information in subsequent
annual reports, ECF No. 25 at ¶ 13; ECF No. 30-1 at ¶ 13; ECF No. 27-8; ECF No. 27-9; ECF No.
27-10. Dr. McEvoy says that she did not include “specific information about specific students” in
her reports because she was concerned about protecting student confidentiality and because the
The parties appear to use the terms “Advancement Office,” “Advancement Division,” and
“Development Office” interchangeably. As far as the Court can tell, these three titles refer to the
same fundraising office at Fairfield.
1
2
template that she obtained for annual reports did not call for specific information about individual
students. ECF No. 30-1 at ¶ 13. She does not explain from whom she obtained the template.
Dr. Fitzgerald left Fairfield in June 2014 and Dr. Lynn Babington became the Senior Vice
President of Academic Affairs in July 2014. ECF No. 25 at ¶ 15; ECF No. 30-1 at ¶ 15. Around
the same time, Dr. Sapp left Fairfield and was replaced by Dr. Yohuru Williams. ECF No. 25 at ¶
16; ECF No. 30-1 at ¶ 16. Fairfield states that, in the course of this transition, Dr. Sapp voiced
concerns about the Program and Dr. McEvoy’s effectiveness to Dr. Williams. ECF No. 25 at ¶¶
17-18.2 Before Dr. Sapp left the university, he met with Dr. Williams and Dr. McEvoy to discuss
the Program. ECF No. 25 at ¶ 19; ECF No. 30-1 at ¶ 19. Dr. McEvoy asserts that there was little
substantive discussion about the Program during this meeting. ECF No. 30-1 at ¶ 19; ECF No. 273 at 36. But both parties agree that she was asked if she had any thoughts about who should take
over as Director when her term ended. ECF No. 25 at ¶ 19; ECF No. 27-3 at 35-36. They also
agree that she did not suggest anyone to be her successor or ask why she would not be continuing
in the position. ECF No. 25 at ¶ 19; ECF No. 27-3 at 36-37. Dr. McEvoy testified that Dr. Sapp
suggested two names as potential successors at the end of her term—Gwen Alphonso and Debra
Strauss. ECF No. 27-3 at 37. Dr. McEvoy made no response when Dr. Sapp mentioned Alphonso
and Strauss. Id. Dr. Alphonso was ultimately chosen as Dr. McEvoy’s successor in 2016. ECF
No. 30-16 at 2.
2
Dr. McEvoy argues that testimony from Dr. Williams about what Dr. Sapp told him is
inadmissible hearsay. ECF No. 30-1 at ¶¶ 17-18. Hearsay is an out-of-court statement that “a party
offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c).
The Court does not rely on Dr. Sapp’s statements for their truth, but rather for their effect on Dr.
Williams, who was involved in the decision not to renew Dr. McEvoy’s appointment. U.S. v.
Dupree, 706 F.3d 131, 136 (2d Cir. 2013) (“[A] statement offered to show its effect on
the listener is not hearsay.”).
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Fairfield asserts that during the 2014-2015 academic year—the third year of Dr. McEvoy’s
term and the first year Dr. Williams supervised the Program—Dr. Williams met with Dr. McEvoy
and conducted his own assessment of the Program. ECF No. 25 at ¶¶ 20, 22. Although Dr. McEvoy
admits that Dr. Williams spoke with Dr. Babington and the Advancement Office, she argues that
“[a]n assessment that was limited to speaking with only Dr. Babington and the development office
would not have provided for much of an assessment.” ECF No. 30-1 at ¶ 20; see also id. at ¶ 22.
Fairfield asserts that there were a number of issues with Dr. McEvoy’s directorship of the
Program. First, Fairfield asserts that Dr. McEvoy was not sufficiently accessible to students.
Fairfield points to Dr. McEvoy’s testimony that she held office hours only on Monday, Tuesday,
and Wednesday, and that she did not have access to email at her home. ECF No. 25 at ¶ 24; ECF
No. 27-3 at 5-7. Dr. McEvoy denies that she was inaccessible and asserts that she was available to
meet with students by appointment if they were unable to meet during her office hours. ECF No.
30-1 at ¶ 24; ECF No. 30-7 at ¶ 88. She also notes that her contact information, including her
phone number and email address, was included on written materials distributed in connection with
the Program, and on the Program’s website. ECF No. 30-7 at ¶ 88. She does not deny, however,
that she only had access to email while on campus or that she was typically absent from the school
on Thursdays and Fridays. ECF No. 27-3 at 7.3 Dr. Williams testified that he heard “anecdotal
stories from students who said they found it very difficult to get in touch with [Dr. McEvoy] to
arrange time for advising.” ECF No. 27-13 at 65. He also testified that when he shared his concerns
about availability and accessibility with Dr. McEvoy, he “remember[ed] her kind of defending
herself and . . . immediately becoming a little defensive about it.” Id. at 20. Finally, he testified
Fairfield also asserts that because Dr. McEvoy’s office was in the School of Business, students
in the College of Arts and Sciences found it difficult to meet with her during her office hours, ECF
No. 25 at ¶ 24, but none of the record citations in this paragraph support this assertion.
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that he himself had trouble getting in touch with Dr. McEvoy: “[W]e were trying to get in touch
with Progressor McEvoy and were not able to get in touch with her. And that was a consistent
theme that I had with her over the course of my engagement with her in those roles . . . I know for
a fact we had trouble getting in touch with her.” ECF No. 30-11 at 64. Dr. Babington testified
that, based on the information she had from Dr. Williams, she came to the conclusion that Dr.
McEvoy was inaccessible to students. ECF No. 27-12 at 20.4
Second, Fairfield asserts that Dr. McEvoy did not have a good relationship with the
Advancement Office, which is responsible for raising funds for Fairfield and the Program. ECF
No. 25 at ¶ 26. Mr. Christopher Pates, a development officer in the Advancement Office, was
responsible for raising funds for various programs, including for the Pre-Law Program. ECF No.
27-13 at 31. He testified that Dr. McEvoy provided little assistance in developing a case statement
that was to be used for fund raising:
Q. So about four weeks after the meeting you remember emailing Professor McEvoy a
draft of the case statement?
A. Yes.
...
A. I may have called Sue Quinlivan during the drafting process. I didn’t interact directly
with Sharlene McEvoy. I did ask some questions to have passed on, and I think I sent some
email with questions that didn’t get a response, so I called, I copied Sue Quinlivan and
asked her, and it had to do with – in a case for support you have how the donors will be
recognized, how they’ll be involved, and we didn’t have that in our case, so I was asking
those types of questions, what do you think if we did this, could you ask Professor McEvoy
if we could do that, that type of thing, can you follow up on an email that I sent here, trying
to figure out if we could build that section out in the case or not.
...
Although Dr. Williams testified that complaints by students regarding Dr. McEvoy’s
availability for pre-law advising was not one of the reasons he recommended non-renewal, ECF
No. 27-13 at 65, Dr. Babington testified that she viewed the problems with Dr. McEvoy’s
availability as one basis for her decision not to renew the appointment, ECF No. 27-12 at 17–20.
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A. She sent the document back with very minor edits, and no real comments. That, too, I
though was different. There’s usually some feedback, when you do this with a person who
owns the program, and there was no feedback. The only feedback – and if I remember right
– and I wish I had a copy of the document, but there might have been a one word change
in the five or six pages of narrative, but there were three changes in her bio. So she had
spent time editing her bio, but she didn’t spend time amplifying the vision, which I just,
again, I thought was strange, and it was certainly unusual in my experiences with faculty.
ECF No. 27-14 at 10-11. He also testified that “every time [he suggested] something [to Dr.
McEvoy] it was being sort of shut down [by Dr. McEvoy] before [they] even had a chance to
brainstorm it,” id. at 7, and that she complained about him even though he treated her no differently
than he treated other faculty, id. at 12. Dr. McEvoy admits that she complained about Mr. Pates,
but states that Mr. Pates was only concerned with raising money and did not criticize her
performance as Director of the Program. ECF No. 30-1 at ¶¶ 25-26. Mr. Pates agrees that his
suggestions to Dr. McEvoy “would have had to do with donors interacting with the program.” ECF
No. 27-14 at 14. He also testified about his criticisms of Dr. McEvoy as follows:
Q. In any of your communications with Mr. Halas, did you convey any criticisms that you
had about the prelaw program itself under Professor McEvoy’s directorship?
A. Probably shared the same that I did with [Dr. Williams], if we had someone that was
more willing to communicate with donors. And donors give feedback, so you have to be
able to take that feedback. Donors, they have ideas, and if you’re not willing to listen to
those ideas, donors get offended and they don’t invest. You at least have to listen to the
ideas. So yes, I definitely would have said something about that.
Q. The same kind of sentiment that you testified about earlier that you expressed to Dr.
Williams, that you wished you had a prelaw director that you could take on donor visits
with you, right?
A. Yes, I’m certain of that, yes.
Id. at 19-20. Dr. McEvoy denies Fairfield’s assertion that she had issues with the Advancement
Office; she asserts that she worked closely with members of the office, particularly with Gerry
Derbyshire and Hope Ogletree. ECF No. 30-1 at ¶¶ 26, 77; ECF No. 30-7 at ¶ 108. Mr. Pates
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testified that Ms. Ogletree “warned” him “that Professor McEvoy could be confrontational, and
that’s why [Ms. Ogletree] was in the meeting [with Dr. McEvoy],” even though he normally
attended faculty meetings one-on-one. ECF No. 27-14 at 7. Dr. Williams testified that he was made
aware of some “very specific concerns about the Pre-Law Program” by Mr. Pates, including that
alumni would not support the Program because it was not addressing contemporary issues in the
study of the law, and that Dr. McEvoy was combative in response to suggestions about raising
revenue for the Program. ECF No. 27-13 at 31-35. Dr. McEvoy asserts that at no time was she
informed that it was her job to raise money for the Program. ECF No. 30-1 at ¶ 76. Dr. Williams
testified otherwise:
What I did share with her was that it was important for her to engage with development,
and part of . . . that engagement facilitated the work of development to raise funds. That’s
the same expectation you would communicate to any director in that role that you’ve got
to work with your development officers because they’re out raising the curriculum money
necessary for programs to provide opportunities for students. And that, that would have
been – that’s what we would have talked about. Did she have a specific responsibility? As
a program director for a program which was of high interest and where you have significant
alum interest and some alum who were willing to give, it’s the same expectation of anyone.
Yeah, you have to engage and play nice with your development officers.
ECF No. 30-11 at 46.
Fairfield’s third stated concern about Dr. McEvoy was her alleged failure to align the
Program with Fairfield 2020, a strategic plan to take the university through the year 2020. ECF
No. 25 at ¶ 36. Dr. Williams testified that Dr. McEvoy’s reports did not include “any real strategic
visioning or any attempt to engage with the priorities that had been shared,” ECF No. 27-13 at 44,
even though they had “been asking for . . . her to align the program with [the Fairfield 2020]
strategic plan,” id. at 45. He elaborated that:
[Dr. McEvoy’s reports] felt a little cut-and-pasted from year to year, formulaic, and there’s
nothing [in the 2014-2015 report] about strategic direction or university mission . . . in a
year when we spent an entire year talking about strategic planning. So here was her
opportunity to say [t]his is what the university’s articulating in terms of its strategic plan,
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here’s how I see the Pre-Law Program positioned to contribute to positioning for the future.
There was none of that. It was just some general observations about students in the
program, and then you look at goals and potential growth, and it’s the same thing. So that’s
what I mean by it was disappointing. Superficial.
Id. at 45. He said that “the annual report itself” was not the problem; rather, it was the “behavior
and the problems that [the report] highlights.” ECF No. 30-11 at 54. He went on to testify that:
The kind of backward-looking, traditional, not engaged with 2020, not thinking about
strategic visioning, the report itself is a reflection of [that]. It is not the reason. It’s a
reflection of what we were already seeing that would have made it very problematic for
anyone to continue in that role who held similar views.
Id. Dr. McEvoy asserts that Dr. Williams never communicated with her about Fairfield 2020. ECF
No. 30-1 at ¶ 36; ECF No. 30-7 at ¶ 114. Dr. Williams testified otherwise. ECF No. 27-13 at 1819, 24, 45. The letter appointing Dr. McEvoy to a one-year term as Director of the Program
referenced Fairfield 2020. ECF No. 27-17 at 2 (explaining that, “given the changes associated with
Fairfield 2020, the Provost’s office is taking the year to review all contractual arrangements
including those governing program directors with an eye toward increasing efficiency,
effectiveness, and accountability across the campus”).
As a fourth issue, Fairfield cites Dr. Williams’s testimony that Dr. Sapp had “shared some
concerns about the curricular – the direction of the program where the program did not seem to be
responding to changing avenues for the preparation of young people into law school particularly
around health care and technology,” and that “[i]t seemed kind of frozen around corporate and
criminal law.” ECF No. 25 at ¶ 17; ECF No. 27-13 at 6.5 He also testified that students told him
“that, you know, it was a more traditional pathway.” ECF No. 27-13 at 41. Dr. McEvoy asserts
that “the charge that the Pre-Law Advisory Program under [her] directorship was focused on
5
Dr. McEvoy objected to this testimony as inadmissible hearsay. As set forth in note 2, the Court
does not rely on Dr. Sapp’s statements for their truth, but rather for their effect on Dr. Williams,
who was involved in the decision not to renew Dr. McEvoy’s appointment.
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corporate or criminal law is completely false.” ECF No. 30-1 at ¶ 42; ECF No. 30-7 at ¶¶ 62-78.
She states that she scheduled many events that provided students the opportunity to explore areas
of law other than corporate or criminal law and to speak with practitioners in those other areas of
law. ECF No. 30-1 at ¶¶ 61-63; ECF No. 30-7 at ¶¶ 67-78. Dr. Williams also expressed concern
about another curricular issue—3/3 programs. These programs permit students to complete three
years at an undergraduate institution and three years at a law school and have the first law school
year count toward the final year of their undergraduate degrees. ECF No. 30-11 at 16. Dr. Williams
testified that he spoke to Dr. McEvoy in the summer of 2014 about pursuing 3/3 programs, id. at
20; that “it certainly would have been something that I would have anticipated would have been
on her radar,” id. at 26; and that he believed “she should have been exploring the opportunities [to
enter into 3/3 programs],” id. at 28. Dr. McEvoy asserts that Dr. Williams never notified her that
she needed to take action to help secure 3/3 programs with law schools. ECF No. 30-1 at ¶ 78;
ECF No. 30-7 at ¶ 110. And Dr. Babington testified that she did not believe it was Dr. McEvoy’s
responsibility to establish 3/3 programs with law schools. ECF No. 30-10 at 40-41.
Fifth, Fairfield asserts that Dr. McEvoy did not gather or analyze data on student grade
point averages, LSAT scores, or law school admissions, and that there was no assessment of
outcomes that could be used to give advice to students. ECF No. 25 at ¶ 23. In her application for
the directorship, Dr. McEvoy explained that she would take the following action with respect to
data collection:
I would keep records of which students from which majors have an interest in law school
and those who have been successful in getting admitted: GPAs, LSAT scores and the law
school applied to. I would also keep track of the schools that Fairfield Students are not
accepted to.
ECF No. 27-5 at 2. When Dr. Fitzgerald appointed her to the directorship, he highlighted the data
collection component of the proposal:
9
You plan to gather and analyze data on GPA’s [sic], LSAT scores and relative success in
gaining admissions to various law schools in order to assess outcomes and give the best
advice and guidance to students. The Office of Institutional Research will be able to assist
you in setting this up.
ECF No. 27-6 at 2. Dr. McEvoy denies the assertion that she failed to collect such information;
she admits, however, that she did not include the information in her annual reports or otherwise
share it with Dr. Williams. ECF No. 30-1 at ¶ 23; ECF No. 27-3 at 16-17.
Sixth, Fairfield asserts that there were problems with the internship and mentorship
components of the Program. With respect to internships, Fairfield asserts that Dr. McEvoy did not
increase the number of internship opportunities for students. ECF No. 25 at ¶ 24. Although Dr.
McEvoy denies this statement, ECF No. 30-1 at ¶ 24, she admitted during her testimony that she
did not establish any internships, ECF No. 27-3 at 18. With respect to mentorship, Dr. McEvoy
connected law students with students interested in law school, but there were no formal guidelines,
monitoring, or reporting about the mentorship program. ECF No. 25 at ¶ 31; ECF No. 30-1 at ¶
31. Dr. Babington testified that the Program was not “student-focused” or “student-centric” under
Dr. McEvoy in part because “[the Program was] not improving [its] connection with [its] alumni
and finding internships for [its] students.” ECF No. 30-10 at 27.
Dr. McEvoy asserts that Dr. Williams did not notify her of any perceived deficiencies in
her performance as Director of the Program. ECF No. 30-1 at ¶¶ 78-84. Specifically, she asserts
that “he never expressed concerns regarding her availability or difficulty in communicating with
her; that the Program was not student-centered or student-focused; that the Program was failing to
address new developments in the law regarding healthcare or technology; that the Program was
not aligned with the strategic vision of Fairfield2020; that Plaintiff needed to take action to help
secure 3/3 programs with law schools; that the annual reports submitted by Plaintiff failed to meet
expectations, or needed to be changed; that the Program was too focused on corporate and criminal
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law; or that Plaintiff needed to work better with the Development Office.” ECF No. 30-1 at ¶ 78;
see also id. at ¶¶ 79, 81-84; ECF No. 30-7 at ¶¶ 110-111, 113, 115-117.
C. The Decision to Appoint Dr. McEvoy to an Additional One-Year Term as Director
As Dr. McEvoy’s first term drew to a close, Dr. Williams and Dr. Babington discussed
potential successors to Dr. McEvoy, including Dr. Gwen Alphonso and Dr. Debra Strauss, the
same two individuals who had been mentioned by Dr. Sapp in the 2014 meeting with Dr. McEvoy
and Dr. Williams. ECF No. 27-12 at 9-10. Ultimately, Dr. Williams and Dr. Babington decided to
offer the position to Dr. Alphonso. ECF No. 25 at ¶ 41; ECF No. 30-1 at ¶ 41. Dr. Williams testified
that they were concerned with improving student outcomes, aligning the Program with the
Fairfield 2020 strategic plan, and having a Director who worked effectively with the Advancement
Office. ECF No. 27-13 at 48-49. He also explained that “[i]t was a three-year term,” “[Dr.
McEvoy’s] time was just up, and this was the opportunity to think about a reimagination of this
program and a shift in leadership.” ECF No. 27-13 at 48. Dr. Babington testified that the Program
“wasn’t bad the way it was,” but it “just wasn’t good.” ECF No. 27-12 at 14.
Dr. Alphonso declined the offer because she was applying for tenure and had a number of
other commitments that would prevent her from committing herself wholeheartedly to the position.
ECF No. 27-20 at 2; ECF No. 25 at ¶ 41; ECF No. 30-1 at ¶ 41. In an email rejecting the offer, Dr.
Alphonso explained that “[she] could do this instead, much more successfully (and sanely!),
starting in Fall 2016” because by then she “would (hopefully) have tenure, have [her] book and
the Polity piece done, and [there would likely be] another Americanist in the Department.” ECF
No. 27-20 at 2. She went on to say that “[i]f it is at all possible to have an interim Director for this
coming year and for [her] to be considered for a full term starting Fall 2016, [she] would be most
thrilled and obliged to be so considered.” Id.
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After Dr. Alphonso turned down the position, Dr. Williams and Dr. Babington offered Dr.
McEvoy a one-year appointment. ECF No. 27-17 at 2. The appointment letter noted that the oneyear term was “a break with previous practice,” but that it was in “no way a negative reflection on
[her] service to the university.” Id. Dr. Babington testified that she and Dr. Williams decided to
offer Dr. McEvoy a one-year appointment because “Dr. McEvoy had proven that she could
adequately run the program, [b]ut [they] definitely wanted a change and Dr. Alphonso had
indicated that . . . if she was successful in being promoted and earning tenure, that she would be
interested in then taking leadership of the program.” ECF No. 30-10 at 17-18. Dr. McEvoy
accepted the one-year appointment as Director of the Program. ECF No. 27-17 at 2.
D. Dr. Alphonso’s Appointment as Director of the Program
At the end of Dr. McEvoy’s one-year term, Dr. Williams and Dr. Babington decided to
offer Dr. Alphonso a three-year term as Director. ECF No. 30-16 at 2. Dr. Babington testified that
“Dr. Gwen Alphonso, we felt, would be able to institute best practices and revise and revamp the
pre-law program to make it more student-centered, student-focused, and improve outcomes for our
students.” ECF No. 27-12 at 16. She also testified that, under Dr. McEvoy, “[t]he program had
been doing the same thing for years with the same outcomes,” “[i]t wasn’t student-focused,
student-centric,” “[w]e were not improving our connection with our alumni and finding internships
for our students,” and “[n]o changes had been made over the years.” Id. at 18. In the spring of
2016, Dr. Williams testified, he spoke with Dr. Alphonso about the Program:
I shared at that point what we were looking for in a Pre-Law Director. I talked a lot about
Fairfield 2020 needing somebody who would be willing to engage deeply with the
development office to think very strategically about student outcomes and about a range of
opportunities within the law specifically highlighting technology and health care. [Dr.
Alphonso] talked a lot about what she would need in terms of release time and stipend and
funding for speakers. So it was that kind of – kind of a broad-ranging, high-level
conversation about what she would need to take the duty on and what we were looking for,
what the provost was looking for in terms of, of a leader.
12
ECF No. 27-13 at 55-56; ECF No. 25 at ¶ 50.6
E. Statements About Dr. McEvoy’s Age
Fairfield asserts that Dr. McEvoy has no evidence that her age was discussed by Dr.
Babington or Dr. Williams or that either of them made any age-related comments to her or about
her. ECF No. 25 at ¶ 60. Dr. McEvoy denies this statement in part, asserting that in his deposition
testimony, Dr. Williams “made a number of statements evidencing age bias against [her], including
false statements that the Program she directed was ‘backward-looking,’ ‘traditional,’ ‘frozen,’
‘stuck in the 20th century,’ and preparing students for a ‘19th century law career.’” ECF No. 30-1
at ¶ 60.
II.
LEGAL STANDARDS
The court must grant a motion for summary judgment if the moving party shows “that there
is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under
the governing law,” and a dispute is “genuine” if “a reasonable jury could return a verdict for the
nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If a
motion for summary judgment is supported by documentary evidence and sworn affidavits and
“demonstrates the absence of a genuine issue of material fact,” the nonmoving party must do more
than assert the existence of some unspecified disputed material facts or “rely on conclusory
allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d
Dr. McEvoy “denies that there were discussions with Dr. Alphonso about ‘what the University
wanted to accomplish with the Program.’” ECF No. 30-1 at ¶ 50. However, to support this denial,
Dr. McEvoy cites Dr. Williams’s testimony about his communication with Dr. McEvoy in 2015;
the discussion with Dr. Alphonso referenced here occurred in 2016. ECF No. 30-11 at 55-57
(discussing 2015); ECF No. 27-13 at 55-56 (discussing conversation with Dr. Alphonso in 2016).
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42, 44 (2d Cir. 2015) (internal citation omitted). The party opposing the motion
for summary judgment “must come forward with specific evidence demonstrating the existence of
a genuine dispute of material fact.” Id. In reviewing the record, the court “must construe the
evidence in the light most favorable to the non-moving party and draw all reasonable inferences
in its favor.” Gary Friedrich Enterprises, LLC v. Marvel Characters, Inc., 716 F.3d 302, 312 (2d
Cir. 2013).
III.
DISCUSSION
The Age Discrimination in Employment Act (the “ADEA”) makes it unlawful for an
employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). It is well established that the McDonnell
Douglas burden-shifting framework applies to claims brought under the ADEA. Delaney v. Bank
of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014). “Under McDonnell Douglas, the plaintiff bears
the initial burden of establishing a prima facie case of discrimination. If the plaintiff does so, the
burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its
action. Once such a reason is provided, the plaintiff can no longer rely on the prima facie case, but
may still prevail if she can show that the employer’s determination was in fact the result of
discrimination.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (internal
quotation marks and citations omitted).
In Gross, the Supreme Court explained that “a plaintiff bringing a disparate-treatment
claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the
14
‘but-for’ cause of the challenged adverse employment action” and not just a contributing or
“motivating factor.” Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 180 (2009).7
A. Prima Facie Case
In order to establish a prima facie case of age discrimination, Dr. McEvoy must show “(1)
that she was within the protected age group, (2) that she was qualified for the position, (3) that she
experienced adverse employment action, and (4) that such action occurred under circumstances
giving rise to an inference of discrimination.” Gorzynski, 596 F.3d at 107. Fairfield does not
contest any elements of the prima facie case. ECF No. 26 at 11 (“As the degree of proof necessary
to establish a prima fade case ‘is minimal,’ the University reserves its right to challenge the
elements of the prima facie case at this time.”). Indeed, the burden at this stage “is not a heavy
one,” Gorzynski, 596 F.3d at 107, and it is met here. First, Dr. McEvoy was 65 years old when
Fairfield declined to renew her appointment. ECF No. 30-7 at ¶ 5; 29 U.S.C. § 631(a) (the class
protected by the ADEA is comprised of “individuals who are at least 40 years of age”). Second,
she was qualified for the position. ECF No. 30-10 at 18 (Dr. Babington testifying that Dr. McEvoy
was qualified to serve as Director of the Program). Third, she experienced an adverse employment
action when she was not appointed to another term as Director of the Program. Fourth, her
replacement was 27 years her junior. ECF No. 30-12 at ¶ 6; Hopkins v. New Eng. Health Care
Employees Welfare Fund, 985 F. Supp. 2d 240, 257 (D. Conn. 2013) (“[A]ge difference has been
found to be enough to establish a prima facie case”).
Before Gross, an employee could carry her burden at the third step “if the evidence, viewed in
the light most favorable to the plaintiff, would permit a jury to find that her dismissal was
motivated at least in part by age discrimination.” Gorzynski v. JetBlue Airways Corp., 596 F.3d
93, 106 (2d Cir. 2010) (internal quotation marks omitted) (emphasis in original).
7
15
B. Legitimate Nondiscriminatory Reasons
At the second stage of the McDonnell Douglas framework, the burden shifts to the
employer to “produce evidence which, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.” Carlton v. Mystic Transp., Inc., 202 F.3d 129,
136 (2d Cir. 2000) (internal citations and emphases omitted). Just as Dr. McEvoy’s burden was
not a heavy one at the prima facie stage, Fairfield’s burden at this stage is also “light.” Greenway
v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). “The employer need not persuade the court
that it was motivated by the reason it provides; rather, it must simply articulate an explanation that,
if true, would connote lawful behavior.” Id. (emphasis in original). Here, Fairfield has advanced
several legitimate reasons for declining to re-appoint Dr. McEvoy as Director of the Program.
First, Fairfield argues that Dr. McEvoy was not sufficiently accessible to students. ECF
No. 26 at 12-13. To support this argument, Fairfield points to Dr. McEvoy’s testimony that she
was not on campus on Thursdays or Fridays, and that she did not have access to email at her home.
ECF No. 27-3 at 6-7 (Dr. McEvoy’s testimony that she was typically absent from the school on
Thursdays and Fridays and did not have access to email at home). It also notes that “[t]here were
accounts that students were unable to reach Dr. McEvoy or that she did not respond in a timely
manner to them.” ECF No. 26 at 12; see also ECF No. 27-13 at 65 (Dr. Williams testifying that he
heard “anecdotal stories from students who said they found it very difficult to get in touch with
[Dr. McEvoy] to arrange time for advising”); id. at 20 (Dr. Williams testifying that when he shared
concerns about availability and accessibility with Dr. McEvoy, he “remember[ed] her kind of
defending herself and . . . immediately becoming a little defensive about it”); ECF No. 27-12 at 20
(Dr. Babington testifying that, based on the information she had, she came to the conclusion that
Dr. McEvoy was inaccessible to students.).
16
Second, Fairfield argues that in submitting her annual reports, she “did not provide a vision
for the future of the Program.” ECF No. 26 at 12; see also id. at 13 (arguing that “Dr. Williams
did not think that the Program was as effective as it could be” in part because “there was no
articulation of a vision for improving the Program”). Fairfield points to testimony from Dr.
Williams that his “recommendation to the provost was that [they] needed to find a director that
would allow [them] to strategically align with the Fairfield 2020, and that in [his] estimation, Dr.
McEvoy was not gonna be able to help [them] do that.” ECF No. 27-13 at 58; see also id. at 45
(Dr. Williams testifying that “[the reports] felt a little cut-and-pasted from year to year, formulaic,
and there’s nothing [in the 2014-2015 report] about strategic direction or university mission . . . in
a year when we spent an entire year talking about strategic planning”); id. at 44 (Dr. Williams
testifying that the reports did not include “any real strategic visioning or any attempt to engage
with the priorities that had been shared”).
Third, Fairfield argues that Dr. McEvoy “did not provide the type of data that Dr. Fitzgerald
had indicated that he wanted.” ECF No. 26 at 12; see also id. at 13 (arguing that “Dr. Williams did
not think that the Program was as effective as it could be” in part because “there was no data
included in the annual reports to determine what was being accomplished”). Fairfield points to the
appointment letter in which Dr. Fitzgerald set out specific goals including gathering and analyzing
data to assess student outcomes. ECF No. 26 at 11; see also ECF No. 27-6 at 2 (appointment letter
highlighting that Dr. McEvoy “plan[ned] to gather and analyze data on GPA’s [sic], LSAT scores
and relative success in gaining admissions to various law schools in order to assess outcomes and
give the best advice and guidance to students” and noting that the “Office of Institutional Research
will be able to assist [her] in setting this up”). It also points to Dr. McEvoy’s annual reports, which
17
included little of this information. ECF No. 26 at 12; ECF No. 27-7; ECF No. 27-8; ECF No. 279; ECF No. 27-10.
Fourth, Fairfield argues that “there were issues concerning [Dr. McEvoy’s] relationship
with the Advancement Office.” ECF No. 26 at 13. Dr. Williams testified that he was made aware
of some “very specific concerns about the Pre-Law Program” by Mr. Pates, including that alumni
would not support the Program because it was not addressing contemporary issues in the study of
the law, and that Dr. McEvoy was combative in response to suggestions about raising revenue for
the Program. ECF No. 27-13 at 31-35. Fairfield also points to testimony by Mr. Pates that Dr.
McEvoy provided little assistance in developing a case statement that was to be used for fund
raising, ECF No. 26 at 13; ECF No. 27-14 at 10-11, and that “every time [he suggested] something
it was being sort of shut down [by Dr. McEvoy] before [they] even had a chance to brainstorm it.”
ECF No. 26 at 13; ECF No. 27-14 at 7; see also id. at 12 (Mr. Pates testifying that although he
treated Dr. McEvoy the same way he treated other members of the faculty, she complained that he
had been pushing her and telling her how to run the Program).
Fifth, Fairfield argues that the Program was not “finding internships for students” and was
not sufficiently “student-centered.” ECF No. 26 at 14. Fairfield points to Dr. Babington’s
testimony that the Program was not “student-focused” or “student-centric” under Dr. McEvoy in
part because “[the Program was] not improving [its] connection with [its] alumni and finding
internships for [its] students.” ECF No. 30-10 at 27; see also ECF No. 27-3 at 18 (Dr. McEvoy
testifying that she did not establish any internships).
Fairfield argues that, despite concerns about Dr. McEvoy’s directorship, Dr. Williams and
Dr. Babington extended her appointment for one year when Dr. Alphonso turned down their offer
in the spring of 2015. ECF No. 26 at 13-14. Fairfield goes on to argue that “Dr. Williams did not
18
see any significant changes in the Program during the 2015-2016 year” and that he, along with Dr.
Babington, “believed that the Program basically had been doing the same thing for several years
with the same outcomes and was not student focused or student centric.” Id. at 14. Fairfield argues
that they offered the position to Dr. Alphonso because they believed that she “could improve the
Program,” “would be more responsive to students and alumni,” and “would improve the working
relationship with the Advancement Office.” Id.
If true, these rationales and supporting evidence “would connote lawful behavior.”
Greenway, 143 F.3d at 52. Fairfield has therefore met its burden at this stage.
C. Pretext
Once the employer produces sufficient evidence to support a nondiscriminatory
explanation for its decision, the burden shifts back to the plaintiff, who must “persuade the
factfinder that the employer’s proffered explanation is merely a pretext for its intentional
discrimination.” Greenway, 143 F.3d at 52. “The extent of this burden varies on a case-specific
basis,” Hodges v. Rensselaer Hartford Graduate Ctr., Inc., 2008 WL 793594, at *7 (D. Conn. Mar.
20, 2008), and depends on “the strength of the plaintiff’s prima facie case, the probative value of
the proof that the employer’s explanation is false, and any other evidence that supports the
employer’s case,” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148–49 (2000).
“The plaintiff must produce not simply some evidence, but sufficient evidence to support a rational
finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and
that more likely than not discrimination was the real reason for the employment
action.” Weinstock v. Columbia U., 224 F.3d 33, 42 (2d Cir. 2000) (internal quotation marks and
alterations omitted). As noted above, Dr. McEvoy must produce sufficient evidence to allow a
19
reasonable juror to conclude that age discrimination was the “but-for” cause of the adverse
employment decision.
1) Age-Related Comments
“Verbal comments constitute evidence of discriminatory motivation when a plaintiff
demonstrates that a nexus exists between the allegedly discriminatory statements and a defendant’s
decision to [take adverse action against] the plaintiff.” Seltzer v. Dresdner Kleinwort Wasserstein,
Inc., 356 F. Supp. 2d 288, 295 (S.D.N.Y. 2005). Here, Dr. McEvoy does not contend that she was
subjected to any age-related comments or criticisms on the job. Nor does she contend that Dr.
Williams and Dr. Babington discussed her age in declining to renew her appointment. Rather, she
argues that during his deposition, “Dr. Williams used a number of adjectives to describe [her] or
the Program which are suggestive of age bias.” ECF No. 30 at 33. Specifically, she notes that he
used the terms “traditional,” “backward-looking,” “antiquated,” “stuck in the 20th century,” and
“19th century law career.” Id.
In determining whether a comment evidences an intent to discriminate, “a court should
consider the following factors: (1) who made the remark, i.e., a decisionmaker, a supervisor, or a
low-level co-worker; (2) when the remark was made in relation to the employment decision at
issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as
discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to
the decisionmaking process.” Seltzer, 356 F. Supp. 2d at 295. Although Dr. Williams was a
decisionmaker, the probative value of his comments is greatly diminished because all the
comments were made during a deposition taken over two years after the employment decision had
been finalized. Witkowich v. Gonzales, 541 F. Supp. 2d 572, 585 (S.D.N.Y. 2008) (“On the other
hand, the remark was made approximately one year after that decision, a length of time that . . .
20
diminishes its probative value.”); Weichman v. Chubb & Son, 552 F. Supp. 2d 271, 285 (D. Conn.
2008) (“[T]he closer a remark’s relation to the allegedly discriminatory behavior is, the more
probative that remark will be.”). The comments were not made during the decisionmaking process;
rather, they were part of Dr. Williams’s post hoc assessment of the Program and Dr. McEvoy’s
directorship.
Most importantly, when each word or phrase is viewed in the broader context of Dr.
Williams’s testimony, it becomes clear that the comments are legally insufficient to constitute
evidence of age discrimination. Dr. Williams used the terms “antiquated,” “traditional,” “20th
century,” and “19th century” in the following contexts:
Q. Do you have any more specific information about what the alum’s complaint was
regarding the direction of the Pre-Law Program?
A. At that time part of what Chris shared is that we were not – the program appeared to be
frozen. Not, not his words, but, you know, kind of antiquated in a way that we were thinking
about directions for law study, opportunities for student interns, pre-law advising around
things like intellectual property, health care, emerging technology, those types of things
that we seem to be kind of frozen in a – in a – in a model that was more 20th century,
backward facing than 21st century.
Q. And have – what was it about the Pre-Law Program that was frozen in those areas?
A. I think two things. One was the pathway. So, again, we were very traditional, and by
that I mean it was a focus on either you’re going into criminal law or you’re going into
corporate law, and there was no clear way to engage. For example, the biology student who
might see law as an opportunity to be involved in health law policy . . .
ECF No. 30-11 at 40-41.
Q. How was the Pre-Law Advisory Program under Dr. McEvoy’s directorship focused on
criminal or corporate law to the exclusion of these other areas?
A. I would say that that really came from the director in the direction of the director, that
Dr. McEvoy herself was very traditional and, again, that may have been a result of where
she was and where she sat in relation to the university being in the business school. We
tend to academics – this is no surprise here – tend to focus our gaze in the area of where
our training is, our specialization is. To give you an example, with regard to myself as a
historian, we tend to steer students to a graduate school and say You should get a graduate
21
degree in history and not think about the emerging fields, emerging technology . . . . I think
that was part of the critiques that was coming from the alums, part of what Chris was
hearing in te[r]ms of donors who were saying that Fairfield doesn’t seem to be kind of
reimagining or recasting itself in a way to be responsive to the changing parameters of the
legal field . . . .
ECF No. 30-11 at 41-42.
Q. . . . [W]hen you said that she wasn’t convinced that the new directions is where the
program should be headed, what new directions were you referring to?
A. I’m referring to specifically to her response to the idea that corporate and criminal were
not the kind of primary pathways . . .
...
Q. And what do you know about the advising that Dr. McEvoy provided to students that
reflected a primary focus on criminal and corporate law?
A. . . . I did have conversations with students to this regard. . . . And, you know, people are
– even back in 2015 I remember this conversation about self-driving cars and folks saying,
Look, you really need to start getting students to look at what are the legal parameters of
these types of issues and not be talking about, you know, kind of the more traditional route.
. . . there were students that I had conversations with who had also shared – not so much
concerns as much as having been told by others that, you know, you’re not really – you’re,
you’re kind of prepared for a 19th century law career in the midst of a major change.
ECF No. 30-11 at 47–49. In each of these deposition excerpts, Dr. Williams is discussing the views
of Mr. Pate, alumni, students, and himself that the Program was exposing students to traditional
legal careers in corporate and criminal law instead of exposing them to legal careers “in intellectual
property, health care, emerging technology.” Viewed in context, the words and phrases identified
by Dr. McEvoy are being used to describe the type of legal career that Dr. Williams believed was
the focus of the Program, and not to refer to Dr. McEvoy’s age. In context, then, the comments
identified by Dr. McEvoy do not raise an inference of age bias. C.f. Hodges, 2008 WL 793594, at
*10 (“[I]t is clear that he used the phrase ‘old and tired’ in this context to refer to older programs
at Rensselaer, as opposed to the cutting-edge programs he sought to institute, and not to older-aged
or otherwise senior faculty, and therefore does not raise an inference of age bias.”). Similarly, the
22
comment that Dr. McEvoy’s annual report reflected a view that was “backward-looking,
traditional, not engaged with 2020, [and] not thinking about strategic visioning,” ECF No. 30-11
at 54, is part of Dr. Williams’s broader concern that Dr. McEvoy did not engage with the Fairfield
2020 strategic plan. This comment on its face is not about age, but rather about Dr. McEvoy’s lack
of engagement with the administration’s stated priorities. Indeed, courts have held that comments
much more directly about age, such as repeated references to an employee being part of the “old
guard,” are “relatively benign” and not actionable. McGarty v. City of New York, 2014 WL
4626019, at *13 (S.D.N.Y. Sept. 16, 2014).
In sum, Dr. McEvoy does not contend that she was subjected to any age-related comments
or criticisms on the job; she does not contend that Dr. Williams and Dr. Babington discussed her
age in declining to renew her appointment; and the only comments she identifies as “suggestive of
age bias” were used to describe the Program’s curricular focus or Dr. McEvoy’s lack of
engagement with the administration’s priorities, and were uttered during a deposition taken years
after the employment decision had been made. In this context, the comments are legally
insufficient to constitute evidence of discriminatory motivation.
2) Fairfield’s “False” and “Shifting” Explanations
An employee may show pretext “by demonstrating weaknesses, implausibilities,
inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons
for its action.” Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 846 (2d Cir. 2013); Roge v. NYP
Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001) (“[A] jury issue on the question of pretext may
be created when an employer offers inconsistent and varying explanations for its decision to
terminate a plaintiff.”).
23
Here, Dr. McEvoy argues that pretext may be inferred because Fairfield “has advanced a
litany of demonstrably false statements and pretextual narratives that are riddled with weaknesses,
implausibilities, inconsistencies, incoherences, or contradictions,” ECF No. 30 at 30, and that the
“various contradictions and inconsistencies in [Fairfield’s] various explanations are also evidence
of shifting explanations, from which pretext can be inferred,” id. at 31. Specifically, she argues
that:
Defendant falsely claimed the existence of complaints that Plaintiff did not make herself
accessible to students, that members of a Board or law school advisory committee
complained that the Program was not addressing new developments in the law, that
Plaintiff was not using the internet effectively, and that Plaintiff did not work cooperatively
with the development office.
Dr. Williams repeatedly provided false testimony that the Program under Plaintiff’s
direction focused on corporate and criminal law, despite abundant record evidence
demonstrating the opposite. Dr. Williams’s claims about an alleged focus on corporate and
criminal law are not only proven false by Plaintiff’s declaration and the available
documents, such as the annual reports submitted by Plaintiff, but Chris Pates, the person
whom Dr. Williams identified as the source for his claims, also failed to corroborate the
allegation.
Throughout its motion and memorandum, Defendant repeatedly asserts, in conclusory
fashion and without specific evidentiary support, the mantra that the Program under
Plaintiff’s direction was not student-focused, student-centric, and did not utilize best
practices. However, none of those claims has any merit . . . . Defendant’s claim that it
decided to replace Plaintiff as the Director because of the need for a strategic vision aligned
with Fairfield 2020 is similarly without credibility.
ECF No. 30 at 30-31 (internal citations omitted).
As an initial matter, Dr. McEvoy spends considerable time arguing about the truth of the
various complaints made about her directorship, but the Court is “decidedly not interested in the
truth of the allegations against plaintiff.” McPherson v. New York City Dept. of Educ., 457 F.3d
211, 216 (2d Cir. 2006). That is, “the factual validity of the underlying imputation against the
employee is not at issue”; rather, the central inquiry is “what motivated the employer.” Id. (internal
quotation marks and citation omitted). Thus, the relevant question is not whether Dr. McEvoy’s
24
stewardship of the Program was actually deficient. Even assuming, as the Court must at this stage,
that Dr. McEvoy is correct about the underlying truth of the justifications—that she was accessible
to students, that she did address new developments in the law, that she did use the internet
effectively, and that she did work cooperatively with the Advancement Office—that does nothing,
by itself, to show that reliance on these concerns by decisionmakers was pretext for discriminatory
animus.8
For instance, Dr. McEvoy argues that she worked cooperatively with the Advancement
Office. See, e.g., ECF No. 30 at 7 (arguing that some members of the Advancement Office did not
criticize Dr. McEvoy’s performance as Director of the Program); id. at 13 (arguing that Dr.
McEvoy “did work cooperatively with the Development office”); id. at 30 (arguing that Fairfield
“falsely claimed . . . that [she] did not work cooperatively with the development office”). But even
if she did work well with the Advancement Office, that does not mean, by itself, that Dr. Williams
was not motivated by his perception that she had a poor relationship with the office. Dr. Williams
testified that he was made aware of some “very specific concerns about the Pre-Law Program” by
Mr. Pates, who worked in the Advancement Office, ECF No. 27-13 at 31-35, and that he spoke
directly with Dr. McEvoy about the importance of “engag[ing] with development,” ECF No. 3011 at 46. He also testified that one reason he chose not to renew Dr. McEvoy’s appointment was
because of “a desire really to address some of the issues that had been raised by development and
to think about how we could be more strategic in attracting funds for a program.” ECF No. 27-13
Evidence that an employer’s proffered justifications were so divorced from the facts as to
appear contrived would suggest pretext because such evidence would cast doubt on whether the
employer “sincerely believe[d]” those justifications. Toussaint v. NY Dialysis Services, Inc., 706
F. App’x 44, 46 (2d Cir. 2017). But Fairfield’s offered justifications are not frivolous and are
generally supported by evidence of observations by third parties, such as students, alumni, and
Mr. Pates; there is no evidence that the decisionmakers did not sincerely believe them.
8
25
at 48. Mr. Pates confirmed that he shared concerns with Dr. Williams about Dr. McEvoy’s ability
to work with the office and with donors:
Q. In any of your communications with Mr. Halas, did you convey any criticisms that you
had about the prelaw program itself under Professor McEvoy’s directorship?
A. Probably shared the same that I did with [Dr. Williams], if we had someone that was
more willing to communicate with donors. And donors give feedback, so you have to be
able to take that feedback. Donors, they have ideas, and if you’re not willing to listen to
those ideas, donors get offended and they don’t invest. You at least have to listen to the
ideas. So yes, I definitely would have said something about that.
Q. The same kind of sentiment that you testified about earlier that you expressed to Dr.
Williams, that you wished you had a prelaw director that you could take on donor visits
with you, right?
A. Yes, I’m certain of that, yes.
ECF No. 27-14 at 19-20. Fairfield has therefore submitted evidence showing that Dr. Williams did
not renew Dr. McEvoy’s appointment at least in part because he was concerned about her ability
to work with the Advancement Office, and that that concern was based on a report to him by the
Advancement Office. Dr. McEvoy argues that this concern was unfounded because she did work
well with the Advancement Office, but she presents no evidence that Dr. Williams was not
motivated by such a concern or that his reliance on negative feedback from a development officer
was pretextual. Toussaint v. NY Dialysis Services, Inc., 706 F. App’x 44, 45 (2d Cir. 2017).
(affirming summary judgment for employer because even if a reasonable jury could conclude that
the employer erroneously credited a colleague’s version of events rather than the plaintiff’s, it did
not follow that the employer’s proffered reasons were pretextual).
In much the same way, Dr. McEvoy presents no evidence indicating that the
decisionmakers’ concerns about her accessibility were pretextual. Dr. Williams testified that he
heard “anecdotal stories from students who said they found it very difficult to get in touch with
[Dr. McEvoy] to arrange time for advising,” ECF No. 27-13 at 65, and that Dr. Sapp told him that
26
Dr. McEvoy could be difficult to get in touch with, id. at 16. He also testified about his own
difficulties getting in touch with Dr. McEvoy: “we were trying to get in touch with Professor
McEvoy and were not able to get in touch with her. And that was a consistent theme that I had
with her over the course of my engagement with her in those roles . . . I know for a fact we had
trouble getting in touch with her.” ECF No. 30-11 at 64. He conveyed those concerns to Dr.
Babington. ECF No. 27-12 at 20. And Dr. Babington, in turn, testified that she decided not to
renew Dr. McEvoy’s appointment in part because the Program was not “student-centric” and Dr.
McEvoy’s “inaccessibility” was one reason the Program was not student-centric. ECF No. 27-12
at 18-19. Dr. McEvoy presents no evidence suggesting that Dr. Williams’s reliance on student
stories about inaccessibility (especially in conjunction with similar complaints from Dr. Sapp and
his own difficulties getting in touch with Dr. McEvoy) was pretext for discriminatory animus, or
that Dr. Babington’s reliance on Dr. Williams’s impressions of inaccessibility was pretext for
discriminatory animus.
Dr. McEvoy next argues that Fairfield’s proffered justifications are pretextual because Dr.
Williams, Dr. Babington, and Fairfield (in filings submitted to the CHRO) raised different
concerns about her directorship. ECF No. 30 at 31-32. In its CHRO filing, Fairfield pointed to
concerns about Dr. McEvoy’s accessibility, use of the internet, relationship with the Advancement
Office, and reticence to address new areas of the law. ECF No. 27-24 at 5-6. Dr. Babington testified
that she was concerned about accessibility, internship opportunities, student outcomes, and
connections with alumni. ECF No. 27-12 at 16-18. Dr. Williams was largely concerned about Dr.
McEvoy’s accessibility, ECF No. 27-13 at 20, 64-65, strategic vision, ECF No. 30-10 at 44-45,
100, reticence to address new developments in the law, ECF No. 27-13 at 6, 41, 65-66, and
relationship with the Advancement Office, ECF No. 30-11 at 46. Thus, the decisionmakers, Dr.
27
Babington and Dr. Williams, shared several concerns about the Program, and some of those
concerns are also reflected in Fairfield’s CHRO filing. And although not all the concerns overlap,
“merely having multiple reasons for firing an employee does not constitute pretext where the
differences among them are not materially inconsistent.” Ehrbar v. Forest Hills Hosp., 131 F.
Supp. 3d 5, 30 (E.D.N.Y. 2015).
And contrary to Dr. McEvoy’s argument, ECF No. 30 at 20, the fact that Dr. Williams and
Fairfield (in the CHRO filing) expressed concern about strategic vision while Dr. Babington
testified that she was not concerned about that issue, does not mean that the justification advanced
by Dr. Williams and Fairfield is pretextual. Dr. McEvoy presents no evidence to support a finding
that concern about strategic vision is materially inconsistent with the concerns articulated by Dr.
Babington. Indeed, Dr. Babington’s testimony that “[t]he program had been doing the same thing
for years with the same outcomes” and that “[n]o changes had been made over the years,” ECF
No. 27-12 at 18, is generally in line with Dr. Williams’s concern about a lack of strategic vision.
An employee’s argument “that [the employer’s] non-discriminatory explanations are inconsistent”
does not create a jury question unless “a reasonable fact-finder could find any material
inconsistency in the proffered explanations.” Timothy v. Our Lady of Mercy Med. Ctr., 233 Fed.
Appx. 17, 20 (2d Cir. 2007); see also Hodges, 2008 WL 793594, at *9 (noting that “shifting
justifications” do not support an inference of pretext where they “are not overtly selfcontradictory” or “sufficiently inconsistent”); Mathews v. Huntington, 499 F. Supp. 2d 258, 267
n.6 (E.D.N.Y. 2007) (explaining that “varying explanations . . . must be materially inconsistent
with one another” to create a jury issue on the question of pretext”). Here, although there are a
number of non-discriminatory explanations from different decisionmakers, some of which overlap
28
and some of which do not, a reasonable fact-finder could not find that the various explanations are
materially inconsistent.
Finally, Dr. McEvoy argues that Dr. Williams falsely claimed that there were complaints
that the Program did not address new developments in the law or was unduly focused on corporate
and criminal law. ECF No. 30 at 14-18, 30. The crux of her argument is that “Dr. Williams
attributed the basis for th[is] criticism to alumni or members of the law school advisory board who
had shared concerns with Mr. Pates, but Mr. Pates denied that any alumni or Board members or
law school advisory committee communicated any such concerns to him about the Program.” ECF
No. 30 at 15 (internal citations omitted). She cites the following testimony from Mr. Pates to
support her argument:
Q. During the time that Professor McEvoy was the director of the prelaw program, did
anyone other than Dr. Williams make any statements to you that were critical of the prelaw
program under Professor McEvoy’s directorship?
A. No.
Q. Did any members of Fairfield University’s board make any statements to you that were
critical of the prelaw program under Professor McEvoy’s leadership?
A. No.
ECF No. 30-8 at 11. But despite these answers, Mr. Pates went on to testify that he heard concerns
about the Program from alumni. He testified that Dan Fitzgerald, an alumnus, “thought that the
topic [of a dinner event] could be different” and that “he had some suggestions for how that could
be done a little differently.” ECF No. 30-8 at 13. Mr. Pates also testified that he told Dr. Williams
that he hoped to have “someone that was more willing to communicate with donors” and someone
who was “able to take that feedback [from donors].” ECF No. 27-14 at 20. He elaborated that
“[d]onors, they have ideas, and if you’re not willing to listen to those ideas, donors get offended
and they don’t invest.” Id. Although Mr. Pates did not testify that these donors specifically
29
complained about Dr. McEvoy’s failure to pursue new developments in the law, his testimony
about their concerns is consistent with testimony from Dr. Williams that donors were concerned
about “the direction of the program” and that they saw Fairfield being “stuck and frozen.”
Moreover, Dr. Williams did not rely solely on reports from Mr. Pates to develop his view about
the Program’s direction; he also testified that Dr. Sapp “shared some concerns about the curricular
– the direction of the program where the program did not seem to be responding to changing
avenues for the preparation of young people into law school particularly around health care and
technology,” ECF No. 27-13 at 6, and that students told him “that, you know, it was a more
traditional pathway,” id. at 41. Dr. McEvoy points to no evidence that Dr. Williams’s testimony
about his conversations with Dr. Sapp and with students was false.
When the record is viewed in the light most favorable to Dr. McEvoy, there is some
evidence that Dr. Williams’s reliance on one proffered justification was pretextual—namely, that
testimony from Dr. Williams about what Mr. Pates told him was not entirely corroborated by Mr.
Pates. But an employee must produce more than just “some evidence;” she must produce
“sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons
proffered by the defendant were false.” Weinstock v. Columbia U., 224 F.3d 33, 42 (2d Cir. 2000)
(internal quotation marks, citations, and alterations omitted). Here, in light of subsequent
testimony from Mr. Pates, and testimony from Dr. Williams that he heard concerns about the same
issue from Dr. Sapp and from students, Dr. McEvoy has not produced sufficient evidence to
support a finding that this proffered justification was false. In addition, Dr. McEvoy has pointed
to no evidence of pretext with respect to the other proffered justifications, and Mr. Pates did
30
corroborate Dr. Williams’s testimony with respect to Dr. McEvoy’s lack of engagement with
development and unsuitability for visits with donors, as shown above.9
More importantly, Dr. McEvoy has not produced sufficient evidence to carry her “ultimate
burden” “that the true reason was an illegally discriminatory one.” O’Sullivan v. New York Times,
37 F. Supp. 2d 307, 315 (S.D.N.Y. 1999); see also Slattery v. Swiss Reinsurance Am. Corp., 248
F.3d 87, 94 (2d Cir.2001) (upholding grant of summary judgment for employer where, even
assuming that the employer’s explanations for its decision were partly pretextual, “the evidence
presented by [Plaintiff] is not enough to permit a jury to find that the real reason he was fired was
his age”); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 98 (2d Cir. 1999) (upholding
summary judgment on ADEA claim because, although employer offered contradictory
explanations as to why it rejected plaintiff, the plaintiff had “produced no evidence that the
hospital’s reasons, even if pretextual, served as pretext for age discrimination”); Reeves, 530 U.S.
at 146–47 (“The ultimate question is whether the employer intentionally discriminated, and proof
that the employer’s proffered reason is unpersuasive, or even obviously contrived, does not
necessarily establish that the plaintiff’s proffered reason . . . is correct.”) (internal quotation marks
omitted). Because Dr. McEvoy had a one-year appointment, Dr. Williams and Dr. Babington did
not need to have any particular reason to appoint another person as Director of the Program. They
were entitled to appoint another person even if Dr. McEvoy was doing a satisfactory job. In fact,
In the course of arguing that pretext may be inferred because Fairfield “has advanced a litany of
demonstrably false statements,” Dr. McEvoy contends that “[Fairfield] falsely claimed to the
CHRO that [she] had been notified of her non-reappointment to argue that her claims were
untimely.” ECF No. 30 at 30. But as she acknowledges, Fairfield only raised the alleged meeting
to support its argument about the timeliness of Dr. McEvoy’s claim. Id. at 12. Whether or not the
meeting occurred is unrelated to Fairfield’s reasons for declining to re-appoint Dr. McEvoy and
sheds no light on whether those reasons were pretextual. Thus, assuming that Fairfield’s claim
about the meeting is false shows only that Dr. McEvoy was not notified about the decision not to
re-appoint her, and shows nothing about whether the reasons for that decision were pretextual.
9
31
Fairfield has submitted evidence, none of which Dr. McEvoy has disputed, that its practice was to
rotate administrative assignments to University-wide director positions among the faculty. ECF
No. 27-1 at 4; ECF No. 27-12 at 23 (Dr. Babington testified that “[t]he director positions are not
meant to be permanent positions held by one person.”). Of course, this does not mean that Fairfield
could refuse to reappoint someone because of her age or another protected status. But it does mean
that it could do so, and often did so, for any other reason, or for no reason, and even if the person
was doing a good job, as Dr. McEvoy contends she was. Ultimately, Dr. McEvoy points to no
evidence that her age, rather than the benign explanations Fairfield proffers, led to her non-renewal
as director of the pre-law program. Even after reviewing the record in the light most favorable to
the plaintiff, I conclude no reasonable juror could find that age was the but-for cause of Fairfield’s
decision not to renew the plaintiff’s appointment.10
***
Dr. McEvoy has not submitted evidence sufficient to create a jury question as to whether
age was a determinative factor in Fairfield’s decision not to renew her appointment. Summary
judgment is therefore warranted.
IV.
CONCLUSION
For the reasons set forth above, Fairfield’s motion for summary judgment, ECF No. 24, is
GRANTED.
IT IS SO ORDERED.
Dated:
Hartford, Connecticut
October 29, 2019
/s/
Michael P. Shea, U.S.D.J.
10
Because I reach this conclusion, I need not decide whether Fairfield is entitled to a strong
inference of non-discrimination under the “same actor” rule, as it argues in its brief. ECF No. 26
at 15–17.
32
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