Storrs v. University of Cincinnati
ORDER granting 50 UC's motion for summary judgment as to Dr. McTague's claims for Title VII gender discrimination (Count I), Title VII retaliation (Count II), and FMLA interference and retaliation (Count IV); and denying 50 UC's motion for summary judgment as to Dr. McTague's claim for violation of the Equal Pay Act (Count III). Signed by Judge Timothy S. Black on 9/25/17. (gs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
COLLEEN McTAGUE STORRS,
UNIVERSITY OF CINCINNATI,
Case No. 1:15-cv-136
Judge Timothy S. Black
GRANTING IN PART AND DENYING IN PART
FOR SUMMARY JUDGMENT (Doc. 50)
This civil case is before the Court on the motion of Defendant University of
Cincinnati (“UC”) for summary judgment (Doc. 50) as well as the parties’ responsive
memoranda (Docs. 70, 72).
In 2007, Plaintiff Colleen McTague Storrs (“Dr. McTague”) was hired as a tenuretrack Assistant Professor in UC’s Geography Department. Dr. McTague successfully
applied for reappointment in 2009 and 2011, though multiple faculty members expressed
concerns about Dr. McTague’s lack of research and publications during both
reappointment evaluations. In 2013, UC denied Dr. McTague’s third application for
reappointment, citing her lack of publications.
On February 24, 2015, Dr. McTague filed the Complaint. The Complaint alleges
that UC violated Title VII of the Civil Rights Act of 1964 by denying Dr. McTague’s
2013 application for reappointment because of her gender and in retaliation for Dr.
McTague complaining of gender discrimination. The Complaint further alleges that UC
violated the Equal Pay Act (“EPA”) by paying Dr. McTague less than male Assistant
Professors. Finally, the Complaint alleges that UC violated the Family & Medical Leave
Act (“FMLA”) by interfering with Dr. McTague’s FMLA leave during the 2011-2012
academic year and by allegedly denying Dr. McTague’s 2013 application for
reappointment in retaliation for her taking FMLA leave.
For the following reasons, the Court GRANTS UC’s motion for summary
judgment as to Dr. McTague’s claims for Title VII discrimination, Title VII retaliation,
FMLA interference and FMLA retaliation, and DENIES UC’s motion as to Dr.
McTague’s claim for violation of the EPA.
A. UC’s appointment process.
At UC, the process of faculty applying for reappointment, promotion and tenure
(“RPT”) is governed by a document established for each department in UC’s College of
Arts & Sciences (the “RPT document”) which is also adopted by each department
consistent with the negotiated collective bargaining agreement between UC and the union
for its faculty members, the American Association of University Professors (AAUP).
(Doc. 65 at ¶ 77).
The Geography Department’s RPT document states, in relevant part, that “[a]
recommendation for reappointment, with the exception of field service and adjunct
faculty, should imply the likelihood of achieving tenure: aptitude or promise should be
the initial considerations, but with an ultimate insistence on demonstrated achievement.”
(Doc. 39-2 at 65). The Geography Department’s RPT document states that
recommendations affecting Assistant Professors should reflect on the areas of research,
teaching, service, and professional development. (Id. at 65-67).
In terms of “research,” the Geography Department’s RPT document states that
reviewers should consider, inter alia: “The establishment of an active research program
involving projects that are likely to result in publication.” (Doc. 39-2 at 65). The
document does not list a specific number of publications that would qualify as an “active
B. Dr. McTague’s education history and professional background.
Dr. McTague attended high school in Utah and attended Brigham Young
University and the University of Utah before graduating with a Bachelor of Science
degree in Geography around 1976. (Doc. 65 at ¶ 1). Dr. McTague worked as a
secondary education teacher for three to four years, and moved with her family from
Utah to New Orleans and Nebraska before returning to school in a Master’s program at
the University of Nebraska around 1992. (Id. at ¶ 2). After a year at the University of
Nebraska, she moved with her family to Cincinnati because of her husband’s job. (Id. at
Dr. McTague obtained her Master’s degree in Geography from UC around 1999.
(Doc.65 at ¶ 4). Dr. McTague obtained her Doctorate in Geography from UC in 2004.
(Id. at ¶ 5).
In 2004, Dr. McTague was offered and accepted a position at UC as a “Field
Service Assistant Professor” (without tenure), for a three-year term. (Doc. 65 at ¶ 8).
During her three-year appointment, Dr. McTague also served as Director of
Undergraduate Studies. (Id. at ¶ 13).
C. Dr. McTague is hired as a tenure-track faculty member in 2007.
Around August 9, 2007, UC offered Dr. Mc Tague a position as a tenure-track
Assistant Professor in the Geography Department. (Doc. 70-2 at ¶ 2; Doc. 39-1 at 16).
The annual salary offered by UC, and accepted by Dr. McTague, was $52,000. (Doc.
39-1 at 16). Dr. McTague does not remember if the position was part of a competitive
search or if there was a search committee, but she did not think there was a search for the
position, and she did not remember interviewing for the position. (Doc. 39 at 40-41). Dr.
McTague testified that her tenure-track Assistant Professor position involved different
responsibilities than her field service position: she would have time to do research in her
tenure-track role, whereas the field service position was focused on teaching and “no
research.” (Id. at 41:16-24).
In October, 2007, shortly after Dr. McTague was hired as a tenure-track professor,
Dr. Valerie Hardcastle (Dean of the College of Arts & Sciences) sent an email to the
Department Heads in the College of Arts & Sciences that Dr. Liu (Department Head of
the Geography Department) circulated to the Geography Department faculty members,
including Dr. McTague. (Doc. 65 at ¶ 32). Dean Hardcastle’s email stated that “some
faculty [at UC] are not pulling their weight,” and reiterated that UC is “a research
intensive university and research is an expectation of all tenured and tenure track
faculty[.]” (Doc. 39-1 at 18).
Around December 6, 2007, Dr. McTague met with Dr. Liu to discuss her
performance evaluation. (Doc. 65 at ¶ 36). Their meeting was later summarized in a
memorandum signed and dated January 7, 2008. (Doc. 39-1 at 20). Dr. Liu stated in the
I emphasized to Colleen the importance of publications in her future RPT
evaluation, which she is fully aware. She recognizes that it is important
that she has articles accepted for publication by the time she comes up for
reappointment. As of now, she has not submitted any articles. However,
she has indicated that she will devote more time in writing papers during
the winter quarter.
(Doc. 39-1 at 20).
D. Dr. McTague successfully applies for reappointment in 2009.
On or around May 15, 2008, Dr. McTague met with Dr. Liu for her annual review.
(Doc. 65 at ¶ 55). The review stated that Dr. McTague’s performance was “excellent” in
the areas of teaching and service. (Doc. 39-1 at 42). The review noted that Dr. McTague
had not published any papers during her first academic year and had not submitted any
papers for publication. (Id.) The review stated Dr. McTague’s research projects were “in
their early stages and have not led to publications yet,” but that she was “encouraged to
submit her research findings for publication.” (Id.). The review stressed the importance
of research in reappointment evaluations:
She had not submitted any articles for publication at the time of this
meeting. She expressed her commitment to devote more time in writing
papers in the immediate future. She is full aware of the importance of
publications in her future RPT evaluations.
In early 2009, as part of her reappointment application, Dr. McTague noted in her
self-evaluation that her research was bare as a result of transitioning from a field service
There are disadvantages and advantages associated with beginning a new
assistant professor position at a research institution without an established
agenda. The three primary and dominant disadvantages are obvious: No
publications, no publications in the pipeline and no research ready to begin
(Doc. 39-2 at 15).
On February 26, 2009, the Geography Department RPT committee recommended
Dr. McTague for a three-year reappointment. (Doc. 39-2 at 38-40). The committee
noted that Dr. McTague’s transition from field service Assistant Professor to Assistant
Professor “required that Dr. McTague radically revise her role in the department from
one that focused exclusively on teaching and service to one that now includes research in
addition to teaching and service.” (Id. at 38) The Geography Department RPT
committee opined that Dr. McTague was making “good progress” in balancing the three
obligations. (Id.) The committee praised Dr. McTague’s “high quality, innovative,
student-oriented teaching” and her commitment to students. (Id.) The committee
commended Dr. McTague for making “credible progress in building a viable research
program,” as well as attracting over $100,000 in grants. (Id. at 39). Still, the committee
A careful reading of Dr. McTague’s annual performance reviews clearly
shows that there is a concern that she begin to translate her research into
published articles on a regular basis. The RPT committee shares that
concern and urges Dr. McTague to continue to readjust her deep
commitment to teaching and service so that she has adequate time to devote
to writing up her research.
(Id. at 40).
On March 2, 2009, Dr. Liu concurred with the RPT committee. (Doc. 39-2 at 41).
Dr. Liu stated “Dr. McTague’s performance is excellent in the areas of teaching and
service[.]” (Id. at 42). While Dr. Liu stated Dr. McTague’s research is “starting to show
promise,” and that she has made “concerted efforts in advancing her research,” he also
expressed concern that none of her projects had “led to publication,” stating:
I am somewhat concerned that the dossier shows no articles in review and
little evidence of any articles in progress. This concern is raised in the RPT
committee’s recommendation as well. In my meeting with Dr. McTague in
December of 2007, I was pleased that she expressed her commitment to
devote more time in writing papers in the immediate future. She is fully
aware of the importance of publications in her future RPT evaluations.
(Id. at 42). Dr. Liu concluded that a three-year reappointment, as suggested by the
Geography Department RPT committee, should allow Dr. McTague time to establish her
publication record. (Id.)
On April 15, 2009, the College of Arts & Sciences RPT committee followed both
prior recommendations and recommended a three-year appointment. (Doc. 39-2 at 52).
On May 8, 2009, Dean Hardcastle issued her letter on Dr. McTague’s application.
(Doc. 39-2 at 80). Dean Hardcastle noted that Dr. McTague has a “strong record” in the
areas of teaching and service. (Id.). Dean Hardcastle said it was “understandable” that
Dr. McTague had been slow to develop a research record due to her transition from a
field service position, but stated that she “share[s] the concerns of the department head
and the RPT committee, however, that she has no publications and no scholarship
submitted for publication.” (Id.) Dean Hardcastle recommended reappointment for a
two-year term, and expressly stated that “[t]o merit a second reappointment, however,
[Dr. McTague] will have to demonstrate substantial progress in her research and in her
rate of peer-reviewed publication.”
On August 28, 2009, Provost Anthony Perzigian approved the two-year term
recommended by Dean Hardcastle. (Doc. 39-2 at 86). The Provost commended Dr.
McTague on her “demonstrated teaching excellence and [her] extensive service.” (Id.)
The Provost, too, expressed concern about her research:
A successful dossier for promotion and tenure must contain evidence of
documented accomplishment in the areas of teaching, professional activity,
and service consistent with your unit’s reappointment, promotion, and
tenure criteria. I wish to commend your demonstrated teaching excellence
and your extensive service. However, as you look toward that next dossier,
I strongly encourage you to focus on your research agenda; translating your
research into a faster publication rate—especially in high-impact scholarly
venues; and seeking external funding for your research. Toward those
ends, I encourage you to reexamine the balance between your commitments
to research and to service so that you can devote sufficient time, energy,
and focus to achieving the research requirements of your unit’s RPT
(Id. at 86).
E. Dr. McTague successfully applies for reappointment in 2011.
Around June 10, 2010, Dr. Liu completed and signed an annual performance
evaluation for Dr. McTague. (Doc. 39-3 at 1). The review noted that Dr. McTague had
her first article accepted for publication:
Dr. McTague should be congratulated for having an article forthcoming in
Dialectical Anthropology. She also had one article in review in Urban
Geography, and three articles in progress. She continued to be active in
presenting her research at professional meetings.
(Id.) Dr. Liu noted that he “hopes this marks the beginning of a long period of sustained
publications” and that Dr. McTague’s “teaching load will remain 4 courses and service
load will remain low next year, so she can continue to focus on research and publication.”
In early 2011, Dr. McTague submitted her dossier in support of her application for
reappointment. (Doc. 65 at ¶ 106). On February 4, 2011, the Geography Department
RPT committee recommended that Dr. McTague be appointed for another two-year term.
(Doc. 39-3 at 32). The committee commended Dr. McTague for continuing “to be a great
asset to the department and its students through her teaching and mentoring activities.”
(Id.) The committee expressed concern, however, that Dr. McTague’s “rate of
publication may not be sufficient to allow her to meet the Department’s RPT criteria for
tenure and promotion:”
Dr. McTague had a Field Service Assistant Professor Appointment in the
department from September 2004 through September 2007 during which
time she had a heavy teaching load and served as Director of
Undergraduate Studies. During that time she honed her skills as a teacher
and mentor and made extraordinary contributions towards overhauling the
undergraduate major and generating student interest in geography. In
September 2007, Dr. Mctague’s [sic] appointment was changed to that of a
tenure-track Assistant Professor. Since that time she has continued to be a
great asset to the department as reflected in glowing student evaluations of
her courses and nomination by students for several awards, most recently
(currently) for the A.B. Cohen Award for Excellence in Teaching. During
the past three years she has supervised more undergraduate capstone theses
than all other faculty combined, advised 5 students through the completion
of Master’s degrees, and is currently advisor to 7 graduate students. She
remained Director of Undergraduate Studies until September 2008, at
which point she reluctantly stepped down under the advice of the
Department Head so that she could focus more on developing a research
Dr. McTague was reappointed for 2 years as a tenure-track Assistant
Professor beginning September 2010. During the February 2009
department review for that reappointment, both the RPT committee and
department head noted that Dr. McTague had not yet developed a
substantive research program as reflected in an absence of published or
submitted articles. In her self-evaluation, Dr. McTague noted that the
transition from her field service to tenure-track status had been difficult,
including having to disengage herself to a greater extent from her deep
involvement in the undergraduate program, including only belatedly
stepping down as Director of Undergraduate Studies. She also noted that
she needed to essentially start a research program from scratch which
further slowed her progress in this area. Since that time, Dr. McTague has
clearly begun to develop several research projects, secured a modest
amount of funding to support some of this effort, and generated several
papers presented at professional meetings, one published and one in-press
article, and a draft manuscript for an invited chapter in an edited volume.
She has several other article manuscripts in various stages [sic] preparation
and a contract for a book. The committee acknowledges that his work
represents significant positive steps towards the development of a sustained
program of high quality and scholarly productivity. Nevertheless, the
majority of the committee expressed serious concern whether or not her
current rate of scholarly output, as measured in publications, will be
sufficient to meet requirements for promotion and tenure in two years time.
(Id. at 32-33). The committee concluded that Dr. McTague should “further focus on her
research and publication efforts in order to increase her productivity in this area in years
to come.” (Id. at 33).
On February 4, 2011, Dr. Nicholas Dunning forwarded the Geography Department
RPT committee’s letter to Dr. McTague. (Doc. 39-3 at 37). Dr. McTague responded:
“Thank you, Nick, for the letter. It sounds like I should probably start looking for
another job or just retire.” (Id.)
On February 11, 2011, Dr. Liu concurred with the Geography Department RPT
committee’s recommendation. (Doc. 39-3 at 34). Dr. Liu praised Dr. McTague’s
performance in regards to teaching and service, but shared the committee’s concern
regarding her rate of publication:
The appointment of Dr. McTague as tenure track assistant professor in
September, 2007, marks a major change in her career. Prior to this
appointment, her main focus had been in teaching and service. The tenure
track appointment requires her to establish a research agenda and publish
her research in scholarly outlets. In my meeting with Dr. McTague in
December of 2008, I was pleased that she expressed her commitment to
devote more time in writing papers in the immediate future. She was fully
aware of the importance of publications in her future RPT evaluations.
Knowing her deep commitment to teaching and service, I relieved her,
starting September, 2008, from serving as the director of undergraduate
studies and reduced her teaching load. During the process of evaluating her
reappointment in 2009, the department RPT committee and myself were
concerned that Dr. McTague had no scholarly publications. Since then, Dr.
McTague has made concerted efforts in publishing her research. Her
dossier indicates that she has one article published in Dialectical
Anthropology and another accepted by Urban Geography. In addition, she
has a book chapter in review and several articles in various stages of
preparation. These are encouraging accomplishments for Dr. McTague.
However, with this rate of publication, I share the Department RPT
committee’s concern that she may not be able to demonstrate a record of
sustained high quality research and publication by the time she applies for
promotion and tenure.
(Id. at 35).
On April 21, 2011, the College of Arts & Sciences RPT committee concurred with
both prior recommendations, but echoed its concerns regarding Dr. McTague’s
publications: “[Dr. McTague] has been slow to develop a record of research and scholarly
publication, and may be falling behind the trajectory needed for tenure, as noted in both
letters from the department RPT committee and head.” (Doc. 39-4 at 12). The
Ultimately, the committee felt that Dr. McTague deserved the opportunity
to regain lost momentum and meet the department requirements for
promotion and tenure, and voted 8-1 in support of the recommendations of
the department RPT committee and head for reappointment for a two year
term. We hope the candidate will use this opportunity and make every
effort to establish a sustained record of publication in this term, so that she
will be able to meet the department expectations for promotion and tenure.
On June 2, 2011, Dean Hardcastle departed from all three prior levels of review
and recommended that Dr. McTague not be reappointed. (Doc. 39-4 at 32). Dean
Hardcastle recommended against appointment because Dr. McTague’s research
performance is “far below what we would expect” from a tenure-track faculty member
completing her fourth year. (Id. at 33). Dean Hardcastle opined that Dr. McTague’s
research in the time since her 2009 reappointment was insufficient to warrant
In recommending her for reappointment in 2009, I indicated that, to merit a
second reappointment, she would “have to demonstrate substantial progress
in her research and in her rate of peer-reviewed publication.” In the past
two years, she has published one co-authored, peer-reviewed article (in
Dialectical Anthropology) and has a second in press (at Urban Geography).
She has presented six papers since 2008 at the Annual Meeting of the
Association of American Geographers. She also lists a book chapter as
forthcoming and a book manuscript as under contract with the Cincinnatus
Association, a local organization of which she is a member. Because such
a book does not meet the department’s criteria for publications in “outlets
sponsored by such scholarly and scientific organizations as university
presses, professional associations, and research institutes,” I am surprised
that Professor McTague has been encouraged to proceed with this project.
I certainly share the view of the department head that her “rate of
publication may not be sufficient to allow her to meet the Department’s
RPT criteria for tenure and promotion.” Indeed, I do not see any realistic
way in which Professor McTague will be able to fulfill tenure and
promotion requirements during the next two years.
(Id. at 32) (emphasis added).
On June 15, 2011, Dr. Dunning, Dr. Roger Selya, Dr. Robert South, and Dr.
Susanna Tong emailed Provost Santa Ono a written objection to Dean Hardcastle’s
recommendation. (Doc. 39-4 at 34). These faculty members stated that Dr. McTague’s
transition to a tenure track faculty position “initially proved rather difficult because Dr.
McTague had become so deeply involved in the undergraduate program and only
reluctantly, and somewhat belatedly, gave up that directorship and reduced her teaching
load in order to jumpstart her own research endeavors.” (Id. at 35). The June 15, 2011
letter argued that “the Department’s RPT document underscores several criteria for
reappointment/promotion; research is one criterion, but we also highly value quality
teaching, mentoring and service to the University and community. On the latter, Dr.
McTague’s performance has been stellar and her efforts should be recognized and
On August 22, 2011, Provost Ono issued a decision, departing from the
recommendations at all four prior levels of review, and awarding a one-year
reappointment. (Doc. 39-4 at 43). Provost Ono commended Dr. McTague for her
accomplishments in teaching and service. (Id.). Provost Ono stated:
At the same time, your peers and all previous reviewers of your dossier
express serious concerns about your record of research and scholarship, and
I share those concerns. Most specifically, your attention to your
scholarship needs to address concerns raised by Dean Hardcastle about
your book project with the Cincinnatus Association when she notes that this
project fails to meet departmental criteria for publication in “outlets
sponsored by such scholarly and scientific organizations as university
presses, professional associations, and research institutes.” Future dossiers
should document and demonstrate that the Cincinnatus Association project
indeed meets those criteria; for instance, you might demonstrate that its
review process is comparable in scholarly rigor to that of the other
organizations mentioned in the criteria. Alternatively, you might seek to
place this manuscript—or other manuscripts that would build the record of
research and scholarship in relation to the criteria—in other outlets that are
clearly scholarly and scientific.
At this time, then, I agree with the college RPT committee that you deserve
“the opportunity to regain lost momentum and meet the departmental
requirements for promotion and tenure . . .” I am also encouraged by the
support that you are getting from your Department, through a reduction in
your service obligations and teaching duties. A successful dossier for
subsequent reappointment must contain heightened evidence of
achievement in research consistent with your unit’s reappointment,
promotion, and tenure criteria.
(Doc. 39-4 at 43) (emphasis added).
On the same day, Dr. McTague forwarded the email with the Provost’s letter and
recommendation to Dr. South, Dr. Tong, Dr. Selya and Dr. Dunning, thanking them for
their “efforts in [sic] my behalf.” (Doc. 39-4 at 41).
F. Dr. McTague takes FMLA and sick leave during the 2011-2012 academic
On April 6, 2011, Dr. Tong informed Dr. McTague that she was arranging a
meeting with Dr. Dunning, Dr. Selya and Dr. South to see if they could “come up with
something to help [Dr. McTague] AND the Department.” (Doc. 39-4 at 7). Dr.
McTague thanked Dr. Tong for her concern. (Id.). Dr. Tong responded:
Don’t thank me; I have not done anything!
Anyway, after we met, I was thinking about the options that we have.
PLEASE, please, don’t feel offended; I am just trying to brain storm and
come up with some options so that we can further explore them, and see if
we can make it work. Please let me know which of these following options
are acceptable to you and which one(s) is(are) totally out:
1. postpone the application of tenure till [sic] your 7th year to buy more
2. take a family leave (reason: you need to take care of Bruce) to buy
some time 1
3. collaborate with somebody to speed up the research project; the goal
is to get the two papers out ASAP, and embark on a short project and
get a publication or two out in a year or so
4. change to another position in the Department, a position that is not
so research demanding and is based more on teaching and service,
such as Field Service, Visiting Assistant Professor, Lecturer, or
something?? (I know it will be difficult for you, but at least you
don’t have to leave, and you will be doing something that you are
good at and enjoy)
Please let me know your thoughts. If you can think of any other options
that you would like to pursue, please add them on the list. Hopefully, we
can identify some feasible avenues, and when the four of us meet on
Friday/Monday, we will have at least some discussion points.
(Doc. 39-4 at 8).
On August 26, 2011, Dr. McTague emailed a letter to Department Head Dr. Liu,
requesting FMLA leave beginning September 19, 2011, with an estimated return date of
January 1, 2012. (Doc. 39-4 at 48-50). Dr. Liu approved the request the following day.
(Id.) Dr. McTague’s leave was later extended through the entirety of the 2011-2012
academic year, as she was able to receive additional sick leave through the AAUP “sick
leave bank.” (Doc. 65 at ¶ 142).
Because Dr. McTague was on leave for the entire 2011-2012 academic year, she
was not required to apply for reappointment in February, 2012. (Doc. 65 at ¶ 143). On
Dr. McTague’s husband, Bruce Storrs, M.D., was diagnosed with Non-Hodgkin Lymphoma in
2006 and experienced relapses in 2008, 2009, and 2011. (Doc. 70-2 at ¶¶ 12-14).
February 29, 2012, Dr. McTague was formally notified that (1) she was approved for a
one-year extension of her tenure “probationary period” (which extended her tenure
“track” until August, 2014) and (2) she would be reviewed for reappointment in the
spring of 2013. (Doc. 40-1 at 13-14).
While on leave, Dr. McTague did not teach any classes. (Doc. 40 at 193). No one
from UC told Dr. McTague to meet with students, though she occasionally met with
students because she did not perceive them to be receiving the assistance they required in
her absence. (Doc. 39 at 305-309). No one told Dr. McTague she was required to attend
faculty meetings, though she occasionally voluntarily attended meetings to “keep up with
the department.” (Doc. 40 at 193). Dr. McTague testified she should not have attended
these meetings, but she “didn’t understand FMLA clearly.” (Doc. 39 at 315). Dr.
McTague did not know, and could not remember, if any professor in the Geography
Department told her she needed to work on her RPT folder while on FMLA or sick leave.
(Doc. 39 at 317).
On September 7, 2011, Dr. McTague corresponded by email with Deborah
Herman, her AAUP union representative. (Doc. 39-5 at 7). Dr. McTague stated that she
was under the impression she was supposed to “report things” to Ms. Herman while she
was on leave. (Id.) Over the course of a few emails, Ms. Herman informed Dr. McTague
that she did not have to report to her, because Dr. McTague’s leave had already been
approved, and Ms. Herman’s “official involvement (so to speak) in the case is over.”
(Id.) Ms. Herman concluded: “On a personal level, what I hope is that you will be taking
care of yourself and your husband, and using the time to recover and make progress on
your RPT folder.” (Id. at 9). As Dr. McTague recognized, Ms. Herman is not her
supervisor. (Doc. 39 at 317).
G. Dr. McTague complains about the Geography Department and requests a
In March, 2012, Dr. McTague contacted John Bryan in the Provost’s office to
discuss a potential transfer to the Political Science Department. (Doc. 65 at ¶ 152; Doc.
40 at 37-38). Dr. McTague knew Dean Hardcastle was leaving her position and wanted
to submit the matter to the new incoming Dean, Ron Jackson. (Doc. 65 at ¶ 154). On or
around July 24, 2012, Dr. McTague met with Dean Jackson about her request for a
transfer and prepared a three-page memorandum that she submitted to him. (Id.)
On June 1, 2012, Dr. McTague complained to Dr. Tong about several issues
within the Geography Department, including that Dr. Liu treated Dr. McTague unfairly
by giving her higher teaching and service assignments compared to male professors, and
that Dr. Richard Beck called her a “lazy bitch,” treated her like the “secretary” of the
office, and physically threatened her. (Doc. 70-2 at ¶¶ 24-25). Dr. Tong and Dr.
McTague discussed the possibility of Dr. McTague transferring from the Geography
Department to the Political Science Department. (Id. at ¶ 26).
On July 26, 2012, UC Assistant General Counsel Doug Nienaber emailed, inter
alia, Dr. Tong, Dr. Liu, and John Bryan. (Doc. 67-1 at 18). Mr. Nienaber stated:
I received a call today from Professor Tong, the incoming Department
Chair in Geography (A&S), relaying her concern that Professor McTague is
planning to sue the University of Cincinnati over her tenure denial.
(Doc. 67-1 at 18).
On August 1, 2012, Mr. Bryan forwarded this email to Dean Jackson. (Doc. 67-1
at 17). Dean Jackson responded:
Wow! I have never heard of suing someone in advance of damages. It is as
though she has no intent of working hard to achieve the tenure standards at
this point. Unbelievable. I really want her to succeed with getting tenure.
We will do all we can in the college to support her in her quest for tenure.
Of course with this being her penultimate year we will haver [sic] act
quickly to help in whatever way we can.
(Doc. 67-1 at 17). Dr. McTague was ultimately not transferred to the Political Science
H. The Memorandum of Understanding.
In August, 2012, Dean Jackson appointed Dr. Jana Braziel as an Associate Dean to
assist him, and one of her first assignments was to help prepare a “Memorandum of
Understanding” for Dr. McTague. (Doc. 65 at ¶ 156). Dr. Braziel consulted with Dr.
Tong, who had been appointed as Interim Department Head for the Geography
Department, since Dean Jackson wanted Dr. McTague to have significant releases from
her service and teaching responsibilities. (Id. at ¶ 159). On or around September 10,
2012, Dr. McTague met with Dr. Tong and signed the Memorandum of Understanding.
(Doc. 40 at 127-29). Dr. McTague did not speak to Dr. Braziel, Dean Jackson, Deborah
Dr. McTague claims that Dean Jackson “elected to reject [her] request for a transfer and instead
tasked Associate Dean Braziel and Tong with preparing a Memorandum of Understanding”
shortly after the August 1, 2012 email. (Doc. 70-3 at ¶ 48). While it is clear Dr. McTague did
not transfer to the Political Science Department, Dr. McTague’s statement of facts (Doc. 70-3)
does not point to evidence stating when exactly Dean Jackson denied the request or that Dean
Jackson considered the Memorandum of Understanding to be an alternative to (or in response to)
Dr. McTague’s request to transfer.
Herman, or any fellow Geography professors about the Memorandum of Understanding
before signing it. (Id. at 129-130).
The Memorandum of Understanding states that, to “facilitate [Dr. McTague’s]
progress toward fulfilling the departmental requirements, specifically scholarly research
and publications requirements, for tenure and promotion in the Department of
Geography,” UC is offering (1) a two-class teaching release in the 2012-13 and 2013-14
academic years with two consecutive semesters of full teaching release in spring 2013
and fall 2013, and (2) a full release from service commitments for two academic years
(fall 2012-spring 2014). (Doc. 40-2 at 51).
The Memorandum of Understanding reiterates that, because Dr. McTague was
granted a one-year stay of the tenure clock as a result of her one-year leave, Dr.
McTague’s appointment was extended until August 31, 2014. (Doc. 40-2 at 51). The
MOU states that Dr. McTague will have to submit her RPT portfolio for reappointment in
spring 2013 (with a decision forthcoming by August, 2013), and submit the RPT
portfolio for final promotion and tenure review by fall, 2013. (Id.)
The Memorandum of Understanding states:
We are offering the two consecutive semesters of teaching release and
service reduction in order to promote your scholarly program and to foster
your success in meeting the criteria for promotion and tenure as outlined for
teaching, service, and research in the Faculty Reappointments, Promotions,
and Tenure Criteria and Procedures, which was approved and adopted by
the Department of Geography on January 2, 2002 and which was approved
and adopted with revision on April 12, 2005.
We hope only for your success in this endeavor; and we hope that the
teaching release and service reduction will enable you the requisite time to
complete the six working research papers—currently listed as “in process”
on your curriculum vitae—and publish these papers as articles in peerreviewed, prominent academic journals in the field (as your c.v. indicates
that you plan to do).
(Doc. 40-2 at 51).
I. Dr. McTague’s 2013 application for reappointment is denied.
On October 11, 2012, Dr. McTague returned to full-time work in the Geography
Department. (Doc. 65 at ¶ 169).
In February, 2013, Dr. McTague submitted her application for reappointment.
Prior to submitting her dossier, Dr. McTague submitted two more articles to refereed
journals. (Doc. 70-2 at ¶ 31). One of these articles was accepted for publication on July
12, 2013, and ultimately published in October, 2013. (Id.) Accordingly, at the time Dr.
McTague submitted her application for reappointment in February, 2013, she had
published two articles in the five years she was a tenure-track Assistant Professor. 3 (Doc.
70-2 at ¶ 30).
On February 25, 2013, the Geography Department RPT committee recommended
that Dr. McTague not be reappointed. (Doc. 40-2 at 61). The vote was 7-2. (Id.)
Consistent with practically every recommendation regarding Dr. McTague since
2009, the majority stated that Dr. McTague’s performance in the areas of teaching,
service, and professional development meets (and in some cases exceeds) expectations,
but her “performance in research falls short of what is stipulated in the RPT document.”
(Doc. 40-2 at 61). Specifically, the majority opined that the low number of Dr.
The Court notes that fall 2007 through spring 2013—minus the 2011-2012 academic year Dr.
McTague was on leave—is five academic years.
McTague’s publications, and the low quality of those publications, rendered it “unlikely”
she would achieve tenure in 2014:
The majority has noted that inadequate research performance is a recurring
problem in Dr. McTague’s evaluations. In particular, in his Aug 12, 2011
reappointment letter, Provost Santa Ono states that he is reappointing Dr.
McTague for one year despite negative recommendations at “all previous
levels of review” to give her an additional opportunity to show “evidence of
achievement in research consistent with your unit’s RPT criteria.” In the
majority opinion no such achievement is evidence. The 2005 RPT
document requires “A record of sustained high quality research and
publication directed to a professional audience, indicative of a commitment
to research and its publication in refereed journals.” Under professional
publications, Dr. McTague’s CV lists two articles (one published in Dec.
2010 and one in press from Aug. 2011) in refereed journals and a single
monograph published in 2000. The 2000 monograph has 38 pages of tables
and charts, and reports overall survey results. There is no statistical
analysis (just percentage of voters indicating a preference), no maps or
spatial analysis, and no references. A search on Google Scholar yields no
citations. In the majority opinion this monograph cannot be considered as
a peer-reviewed publication. The 2010 article is a brief 6-page paper with a
single Google Scholar citation (to the abstract). It was published in a
special issue of journal Dialectical Anthropology which has a very low SJR
impact factor of 0.18. The 2011 article is to be published in the journal
Urban Geography which has a low SJR impact factor of 0.89. The RPT
document states that “A recommendation for reappointment, with the
exception of field service and adjunct faculty, should imply the likelihood
of achieving tenure.” It is the majority opinion that, in the fact of
inadequate research and publication record, the likelihood of Dr. McTague
achieving tenure (she is due for tenure review by the fall 2013 according to
the Aug 29, 2012 MOU) is slim. This holds true even under the most
optimistic scenario that assumes that her two manuscripts, recently
submitted to higher impact factor journals (one to Political Geography
submitted on Feb 14, 2013) and another to Applied Geography submitted
on Feb 17, 2013), will eventually be published. Regretfully, given her
research and publication record, the majority cannot recommend Dr.
McTague for reappointment.
(Doc. 40-2 at 61-62).
The minority opinion acknowledged Dr. McTague had a “poor publication
record,” but opined that, given Dr. McTague’s most recent submissions, her excellence in
teaching and service, and difficult circumstances in her life, recommended that she have
additional time to develop her research agenda and build her publication record. (Doc.
40-2 at 62).
On March 16, 2013, Dr. Tong, now Interim Geography Department Head, issued a
letter agreeing with the Geography Department RPT committee. Dr. Tong stated:
Our Work Load Policy, which was approved with revisions on April 11,
2006, states that “…the minimum rate of publication for an active research
program is on average one article – lead author or co-author, in referred
journals (or equivalent) per year.” This implies that she needs to have at
least six (6) peer reviewed articles in reputable journals published by the
time when she applies for tenure. Comparing her research accomplishment
with our Work Load Policy and RPT criteria, her paucity of scholarly
publication in peer-reviewed journals, even if her two recently submitted
papers are accepted, does not bode well for “the establishment of an active
research program. . .” as specified in our RPT document.
(Doc. 40-2 at 83). Dr. Tong concluded:
Although Dr. McTague has a good record in teaching and service, she has
not met the standards of research required in the Department. In her last
reappointment letter in 2011, Provost Ono stated that, “A successful dossier
for subsequent reappointment must contain heightened evidence of
achievement in research consistent with your unit’s reappointment,
promotion and tenure criteria.” Unfortunately, the deliverables are not
here. I therefore concur with the committee’s recommendation and do not
recommend the reappointment of Dr. Colleen McTague.
(Doc. 40-2 at 83).
On April 15, 2013, the College of Arts & Sciences RPT committee departed from
the prior two recommendations, and recommended that Dr. McTague be reappointed for
another year. (Doc. 40-3 at 1). The committee noted that Dr. McTague’s 2011
reappointment came with an expectation of “heightened evidence of research,” and Dr.
McTague’s work in the interim had satisfied that criteria. (Id.)
On May 17, 2013, Dean Jackson issued a letter recommending that Dr. McTague
not be reappointed. (Doc. 40-3 at 1). Dean Jackson’s recommendation was based on the
fact that Dr. McTague had not published any articles since executing the Memorandum of
Understanding and, in his opinion, she would not be in a position to submit a successful
tenure application in a year’s time:
As a means of supporting [Dr. McTague], I co-developed with her
department head Susanna Tong an MOU dated August 29, 2012 that gave
her a full release from teaching in spring 2013, and a full release from
service for two years starting in August 2012. She taught two courses in
fall 2012 and taught nothing in spring 2013. This release from service and
partial release from teaching over the last 8 months was designed as a
means of giving her space to move at least 2-4 of the 8 papers she lists on
her CV as being in progress out of her hands, in review, and accepted for
publication. Each manuscript in progress was at varying levels of
completion in August. At that time I cautioned Dr. McTague that she
would need to get something published in order for me to support her for
reappointment. Nothing was published during that time frame. Instead,
since her appointment as a tenure-track assistant professor in 2007, she has
only produced two journal articles. This is not sufficient progress to place
her up for tenure this fall. The external reviews would not be favorable with
so few publications.
(Doc. 40-3 at 3).
On August 5, 2013, Provost Beverly Davenport issued her final review of Dr.
McTague’s reappointment dossier, informing her that she did not approve her
reappointment, “due primarily to lack of publication.” (Doc. 40-3 at 9). The letter
informed Dr. McTague that her appointment with UC would end effective August 14,
On May 28, 2014, Dr. McTague filed a charge of discrimination with the Equal
Employment Opportunity Commission. (Doc. 40-3 at 15).
J. Other Professors.
The nature of Dr. McTague’s claims requires a comparison between Dr. McTague
and several male faculty members in UC’s Geography Department.
1. Dr. Changjoo Kim.
On March 12, 2008, UC hired Dr. Changjoo Kim as a tenure-track assistant
professor in the Geography Department. (Doc. 65 at ¶ 45). Dr. Kim’s salary was
$66,000. (Doc. 39-1 at 32). At the time he was hired by UC, Dr. Kim was in a tenuretrack position at Minnesota State. (Doc. 65 at ¶ 49). Dr. Hardcastle, the Dean of the
College of Arts & Sciences at the time, testified that, in order to hire Dr. Kim, UC
“would have to beat” the salary he was receiving at Minnesota State. (Doc. 43 at 71-72).
Dr. Liu recommended that Dr. Kim received a $66,000 salary. (Doc. 48 at 19). Dr. Liu
testified that the salary “was based on [Dr. Kim’s] merit. He was Assistant Professor at
another university and he had a strong record of accomplishments, including
publications.” (Id. at 15).
Dr. Kim was granted tenure in 2012. (See Doc. 48 at 61-62; Doc. 48-1 at 43).
During his time as a tenure-track Assistant Professor at UC, he published five journal
articles. (Doc. 70-3 at ¶ 52; Doc. 70-1 at 16).
2. Dr. Richard Beck.
In February, 2009, UC hired Dr. Richard Beck as a tenure-track assistant professor
in the Geography Department at a salary of $68,000. (Doc. 65 at ¶ 60; Doc. 68-1 at 116).
Dr. Beck had been a research faculty member at UC on and off for approximately 10
years. (Doc. 46 at 10-11). Dr. Liu and Dr. Hardcastle discussed the appropriate level of
compensation for Dr. Beck. (Doc. 43 at 10). Dr. Liu testified that Dr. Beck’s salary was
“based on the merit. Richard Beck had a long list of publications. He also had several
large research grants.” (Doc. 48 at 23).
Dr. Beck was granted tenure in 2011. (Doc. 46 at 9). At the time he applied for
tenure, he had published two journal articles while on tenure-track at UC. (Doc. 44 at
3. Dr. Widener.
Dr. Michael Widener was hired as a tenure-track assistant professor in 2012 at a
salary of $70,000. (Doc. 48 at 45-46; Doc. 68-1 at 118). Dr. Widener was hired from a
position as a doctoral student; at the time of his offer, he had not received his Doctorate
degree. (Doc. 68-1 at 118).
A motion for summary judgment should be granted if the evidence submitted to
the Court demonstrates that there is no genuine issue as to any material fact, and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). The moving party has the burden of showing the absence of genuine
disputes over facts which, under the substantive law governing the issue, might affect the
outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be
construed in a light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A party opposing a motion for summary judgment “may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (1986).
A. Title VII claims.
1. Failure to exhaust administrative remedies.
UC argues that portions of Dr. McTague’s Title VII claim are barred by her failure
to exhaust administrative remedies. (Doc. 50 at 41-42). The Court agrees.
Failure to timely exhaust administrative remedies is an appropriate basis for
dismissal of a Title VII action. Williams v. Northwest Airlines, Inc., 53 F. App’x 350,
351 (6th Cir. 2002). To exhaust administrative remedies, a plaintiff must file a charge
with the EEOC within 300 days after the alleged unlawful employment practice occurred.
See 42 U.S.C. § 2000e-5(e). Once the EEOC dismisses the charge and issues a right-tosue letter, the plaintiff has ninety days to file a civil action. See 42 U.S.C. § 2000e5(f)(1).
Here, Dr. McTague filed her EEOC charge on May 28, 2014. (Doc. 40-3 at 15).
Accordingly, Dr. McTague has only exhausted her administrative remedies in regards to
events which occurred in the 300 days preceding May 28, 2014. 42 U.S.C. § 2000e-5(e).
Dr. McTague has identified a number of grievances related to her employment at
UC, including being assigned a higher course load than her male colleagues, being
treated “like a secretary,” and being yelled at by Dr. Beck. However, the only alleged
adverse employment action, that occurred after August 1, 2013, was the denial of her
reappointment on August 5, 2013.
For purposes of clarifying the issues to be presented: the only employment action
the Court will consider in evaluating Dr. McTague’s Title VII claims is the denial of her
application for reappointment in 2013. 4
2. Gender Discrimination.
a. Dr. McTague’s prima facie case fails.
Dr. McTague claims that UC violated Title VII by denying her 2013 application
for reappointment because of her gender.
Title VII prohibits employers from discriminating “because of…race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). In a Title VII case, a plaintiff
bears the ultimate burden of persuading the fact-finder that the defendant intentionally
discriminated against her. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000). A plaintiff may carry the burden by: (1) introducing direct evidence which shows
that in treating a plaintiff adversely, the defendant was motivated by discriminatory
intent; or by (2) introducing circumstantial evidence that supports an inference of
discrimination. Logan v. Denny’s Inc., 259 F.3d 558, 566-67 (6th Cir. 2001).
Here, Dr. McTague does not present any direct evidence of discrimination.
Accordingly, she must establish a prima facie case through circumstantial evidence.
The Court notes that Dr. McTague has acknowledged “The adverse act at issue in [Dr.
McTague’s] claims for both sex discrimination and retaliation is Dr. McTague’s August 2013
non-renewal.” (Doc. 70 at 36).
A plaintiff may establish a prima facie claim of discrimination by producing
circumstantial evidence that satisfies the familiar four-part McDonnell Douglas test. See
Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 173 (6th Cir. 2004). Under this
test, a plaintiff must show that: (1) she was a member of a protected class; (2) she
suffered an adverse employment action; (3) she was qualified for the position; and (4) a
similarly-situated person outside the protected class received more favorable treatment.
Id. (citation omitted).
Here, UC argues Dr. McTague cannot demonstrate the fourth prong, i.e., she
cannot show that any similarly-situated male faculty members were treated more
favorably. (Doc. 50 at 33). The Court agrees.
In order for a plaintiff to demonstrate that a non-protected employee is “similarly
situated,” he must “prove that all of the relevant aspects of his employment situation were
‘nearly identical’ to those of [the non-protected employee’s] employment situation.”
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (quotation
omitted). Further, the individuals with whom the plaintiff seeks to compare her treatment
must have “dealt with the same supervisor, have been subject to the same standards, and
engaged in the same conduct without such differentiating or mitigating circumstances
that would distinguish their conduct or the employer’s treatment of them for it.” Id.
Federal courts which have considered Title VII discrimination claims in the
context of a denial of tenure have required plaintiffs to show the supposedly “similarly
situated” comparator is nearly identical in all factors of employment, including, inter
alia, education, experience, and research productivity. 5 See Hellmann-Blumberg v. Univ.
of the Pac., No. 2:12-cv-286, 2014 U.S. Dist. LEXIS 35345, at * 12 (E.D. Cal. Mar. 13,
2014) (“In determining whether parties are similarly situated, the Court looks to specific
statistical data relating to the objective criteria for tenure, including education,
experience, and number of published works as compared to others who had been granted
Along these lines, courts have required plaintiffs to show that the quality and the
quantity of their publications are similar to the alleged comparator. See Liggitt v. Wash.
State Univ., No. C13-5176, 2014 U.S. Dist. LEXIS 25418, at * 22 (W.D. Wash. Feb. 26,
2014) (plaintiff could not prove she was similarly situated to other professors without
evidence of “the substance or reviews of their tenure application” and “the quality or
quantity of their scholarship.”); McFadden v. State Univ. of N.Y., 195 F. Supp. 2d 436,
454 (W.D. N.Y. 2002) (female plaintiff in a Title VII gender discrimination case could
not show she was similarly situated to a male professor who achieved tenure because
“[t]he problem was [plaintiff’s] scholarship and lack of publication” and “[t]here is no
evidence that [comparator’s] qualifications in that regard were similar to plaintiff’s”);
Chambers v. Ind. State Univ., No. TH 98-8 C M/H, 2000 U.S. Dist. LEXIS 20551, at *
31 (S.D. Ind. Mar. 8, 2000) (plaintiff could not establish prima facie case of racial
discrimination because “[plaintiff] has not shown that Caucasian professors were granted
promotion or tenure despite similar deficiencies in their research performance.”).
While this case involves Plaintiff’s denial of reappointment, as opposed to denial of tenure, the
RPT document states that reappointment “should imply the likelihood of achieving tenure.”
(Doc. 39-2 at 65). Accordingly, the Court finds cases involving the denial of tenure persuasive.
The Sixth Circuit has expressly held a plaintiff must establish that her “research
and situation” were “nearly identical” to the proposed comparator:
[Comparator] published an article in the most prestigious journal in his
field, presented a number of papers, and demonstrated intellectual
independence. [Plaintiff], on the other hand, published articles in less
scholarly journals and Dr. Mueller repeatedly criticized her for not
completing more work independently. While perhaps trivial to the outside
world, these relatively minor differences provide sufficient reasons in the
academic realm for the discrepancy between the two professors. Thus, we
find that [Plaintiff] has not established a prima facie case because her
research and situation were not “nearly identical” to that of [Comparator].
Stein v. Kent State Univ., No. 98-3278, 1999 U.S. App. LEXIS 9152, at ** 16-17 (6th Cir.
May 11, 1999).
Here, Dr. McTague merely alleges she is similarly situated to Dr. Beck, Dr. Kim
and Dr. Widener because they served under Department Head Dr. Liu and because they
were evaluated under the Geography Department RPT document based on teaching,
service, research and professional development. (Doc.70 at 56). This argument fails.
Dr. McTague has not set forth any evidence, or even argument, indicating that the
quantity and quality of her research was comparable to Dr. Kim, Dr. Beck, and Dr.
Widener. Dr. McTague does not provide any evidence or argument from which the
Court could conclude that her publications performance—two articles published in five
years at the time of her 2013 application for reappointment; three articles published in the
six years she was on tenure track—was “nearly identical” to Dr. Beck’s two articles in
the two years he was on tenure track or Dr. Kim’s five articles in the four years he was on
Second, Plaintiff’s argument fails to take into account any “different . . .
circumstances that would distinguish” UC’s treatment of these alleged comparators. See
Ercegovich, 154 F.3d at 352. Concerns regarding Dr. McTague’s research productivity
were documented at four of five levels of review during her application for
reappointment in 2009 and at all five levels of review in 2011. In 2011, Provost Ono
expressly warned Dr. McTague that her next application for reappointment “must contain
heightened evidence of achievement.” (Doc. 39-4 at 43).
There is no evidence that Dr. Beck, Dr. Kim, or Dr. Widener had a history of
concerns regarding their rate of publication and no evidence they received a warning that
their applications for tenure or reappointment had to contain “heightened” achievement.
In the Court’s view, these are “different circumstances” that would distinguish UC’s
treatment of Dr. McTague from its treatment of the alleged comparators.
For these reasons, Dr. McTague has not made a prima facie case of discrimination.
She has simply not shown that she is similarly situated to any of the male professors in
the Geography Department who, she alleges, received more favorable treatment.
b. UC has a legitimate, non-discriminatory reason.
Even assuming, arguendo, Dr. McTague had presented a prima facie case, that
would not end the inquiry—the burden would shift to UC to articulate a nondiscriminatory reason for its decision. Manzer v. Diamond Shamrock Chemicals Co., 29
F.3d 1078, 1082 (6th Cir. 1994).
As indicated by the final decision issued by Provost Davenport on August 5, 2013,
as well as the recommendations from the Geography Department RPT committee,
Interim Department Head Dr. Tong, and Dean Jackson, Dr. McTague’s 2013 application
for reappointment was denied due to lack of publication. This constitutes a legitimate,
non-discriminatory reason for the denial of her application. See Lynn v. Regents of Univ.
of Cal., 656 F.2d 1337, 1344 (9th Cir. 1981) (“Without doubt, deficient scholarship is a
legitimate, nondiscriminatory reason to deny salary increases or tenure.”).
c. Dr. McTague cannot show pretext.
In response, Dr. McTague must now come forward with sufficient evidence which
could support a finding that UC’s rationale was pretextual. Manzer, 29 F.3d at 1083
(citation omitted). Dr. McTague may show this either by directly evidencing that a
discriminatory reason “more than likely motivated the employer” or by indirectly
showing that UC’s proffered explanation is “unworthy of credence.” Day v. Board of
Trustees of Cleveland State Univ., No. 89CV0046, 1994 U.S. Dist. LEXIS 21353, at * 7
(N.D. Ohio Mar. 8, 1994). Specifically, Dr. McTague’s evidence:
must show more than a denial of tenure in the context of disagreement
about the scholarly merits of the candidate’s academic work, the
candidate’s teaching abilities or the academic needs of the department or
university. Absent evidence sufficient to support a finding that such
disagreements or doubts are influenced by forbidden considerations such as
sex or race, universities are free to establish departmental priorities, to set
their own required levels of academic potential and achievement and to act
upon the good faith judgments of their departmental faculties or reviewing
Id. at * 5 (citation omitted).
First, Dr. McTague argues she was subject to an arbitrary and heightened
publications standard compared to other male professors. (Doc. 70 at 63). Dr. McTague
argues that Dr. Tong and Dr. Stepinski claimed she needed six articles by the time she
applied for tenure, whereas Dr. Beck testified she needed five, while other Department
members imposed a seven-publication requirement. (Id.). Dr. McTague argues there is
no evidence that male professors in the Geography Department were ever subject to a
five, six, or seven-publication requirement, and, accordingly, UC’s proffered reason is
pretext for discrimination. (Id.)
The Court does not agree. This Court has expressly held that even if the
subjective criteria in a reappointment or tenure decision is “ignored or misapplied” by
reviewing faculty members, that alone cannot show a university’s otherwise legitimate
reason is pretext for discrimination. See Doucet v. University of Cincinnati, No. 1:05-cv148, 2006 U.S. Dist. LEXIS 29022, at * 57 (S. D. Ohio July 19, 2006) (Dlott, J). Instead,
a plaintiff must show evidence that the alleged errors were the result of unlawful
In Doucet, the plaintiff (Doucet) was a French national and an assistant professor
at UC’s School of Design. Id. at ** 1-2. UC denied Doucet’s application for
reappointment due to Doucet’s failure to demonstrate “satisfactory teaching” as required
by the School of Design’s RPT document. Id. at * 31. Doucet sued UC, claiming the
university had violated her Title VII rights to be free from discrimination on account of
national origin. Id. at * 47. Specifically, Doucet argued that UC’s proffered reason was
pretext for discrimination because UC ignored or misapplied relevant RPT criteria and
because the review process was tainted with irregularities including the consideration of
artificially depressed evaluations. Id. at ** 57-60. The Court rejected this argument
because there was no evidence that these issues were the result of national-origin
While Doucet contends that UC’s application of the RPT criteria was
distorted by discriminatory bias and thus pretextual, the circumstantial
evidence on this point is insufficient to lead any reasonable jury to so
conclude. Significantly, although the University Faculty Grievance
Committee concluded that Doucet’s RPT review had been “tainted by
procedural irregularities,” it found no evidence of national-origin bias. See
Part I.A.5.b., supra. Nor has Doucet pointed to other evidence that could
support a reasonable inference that the alleged irregularities were driven by
national-origin bias. For instance, while Doucet suggests that her student
evaluation scores were artificially depressed by the inclusion of at least one
CAD course she regarded herself as unqualified to teach, there is no
indication that national-origin bias—as opposed to resource or other
legitimate considerations—motivated the School’s course assignments.
Id. at ** 59-61.
Here, just like Doucet, Dr. McTague argues that review of her reappointment
application was tainted by procedural errors, i.e., that the reviewing faculty misapplied
the RPT criteria and imposed arbitrary publication requirements. (Doc. 70 at 63).
However, just like Doucet, Dr. McTague has not set forth any direct or circumstantial
evidence from which the Court could infer that those irregularities were the result of
gender discrimination. The RPT document does not require tenure-track faculty to
publish a precise number of articles; it requires that they maintain an “active research
program.” (Doc. 39-2 at 65). The evidence suggests that Dr. Tong, Dr. Stepinski and Dr.
Beck had different opinions as to how many articles constituted an “active research
program” and why, but there is no evidence to suggest their respective determinations
were influenced, in any way, by Dr. McTague’s gender.
The Court’s conclusion is bolstered by the fact that Dr. McTague cannot
demonstrate that she was subject to a “heightened” publications standard compared to her
male colleagues. Dr. McTague argues some of her reviewers evaluated her application
under the assumption that she would have to publish six articles in her six years on tenure
track to be granted tenure (one article per year), and others under the assumption that she
would have to publish five articles in six years (fewer than one article per year). 6 In
comparison, Dr. Beck was granted tenure after publishing two articles in the two years he
was on tenure track (one article per year) and Dr. Kim was granted tenure after
publishing five articles in the four years he was on tenure track (more than one article per
year). Not only does Dr. McTague fail to present any evidence that these alleged
publication requirements were imposed due to her gender, but she fails to demonstrate
that they are higher than those applied to her male colleagues.
Second, Dr. McTague takes issue with Dean Jackson’s May 17, 2013
recommendation, in which Dean Jackson states that he had hoped the Memorandum of
Understanding would allow Dr. McTague to publish at least 2-4 additional papers, and
that he told Dr. McTague she “would need to get something published in order for me to
support her reappointment.” Dr. McTague claims this recommendation is “disingenuous”
because she submitted two additional articles prior to submitting her 2013 application,
To the extent Dr. McTague suggests she was subject to a seven article requirement, the only
evidence to support this argument is Dr. Beck’s testimony that he thought “some of the people
were using maybe [a] five to seven [publication requirement].” (Doc. 46 at 22). That statement
is inadmissible hearsay and cannot preclude summary judgment.
and because she discussed tenure—not reappointment—with Dean Jackson. (Doc. 70 at
The Court does not agree. Dean Jackson’s recommendation said he hoped the
Memorandum of Understanding would help Dr. McTague get at least 2-4 additional
papers accepted for publication. (Doc. 40-2 at 51). At the time he reviewed Dr.
McTague’s application for reappointment in May, 2013, she did not have any additional
articles accepted for publication. (Doc. 70-2 at ¶¶ 30-32). Further, even if Dean Jackson
and Dr. McTague only discussed requirements for tenure, per the Geography Department
RPT document, Dean Jackson was instructed to vote for reappointment only if he thought
tenure was likely. (Doc. 39-2 at 65). The evidence is that he did not.
There is simply nothing to suggest it is “more likely than not” that UC’s reason for
denying Dr. McTague’s application for reappointment—her lack of publications—is
pretext for discrimination or that its explanation, which is supported by years of
documented concerns, is unworthy of credence. Accordingly, UC’s motion for summary
judgment on Dr. McTague’s claim for Title VII discrimination is GRANTED.
Dr. McTague claims that UC violated Title VII by denying her 2013 application
for reappointment in retaliation for her complaining about gender discrimination.
Title VII prohibits an employer from discriminating against any employee
“because he has opposed any practice made an unlawful practice by [Title VII], or
because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3.
In an action under Title VII, the plaintiff may prove unlawful retaliation by either
(1) presenting direct evidence of retaliation or (2) by raising an inference of retaliation.
See Novotny v. Reed Elsevier, No. C-3-05-424, 2007 U.S. Dist. LEXIS 66608, at * 65
(S.D. Ohio Sept. 10, 2007) (citation omitted).
Direct evidence is evidence which, if believed, requires the conclusion that
unlawful retaliation was a motivating factor in the employer’s action. Abbott v. Crown
Motor Co., 348 F.3d 537, 542 (6th Cir. 2003) (citing Laderach v. U-Haul of Northwestern
Ohio, 207 F.3d 825 (6th Cir. 2000)). Stated another way, evidence is “direct” if it is
capable of proving unlawful retaliation “without any inferences or presumptions.” Id.
Here, Dr. McTague has not presented any direct evidence of retaliation and instead
asks the Court to infer retaliation from the timing and circumstances of the denial of her
reappointment. Therefore, like the Title VII discrimination claim, this claim will be
reviewed using the McDonnell Douglas burden shifting analysis. Novotny, 2007 U.S.
Dist. LEXIS 66608, at * 65 (citation omitted).
Under the first step, Dr. McTague must establish a prima facie retaliation case by
showing (1) she engaged in a protected activity, (2) UC knew about the protected
activity, (3) UC took an adverse employment action against Dr. McTague, and (4) there
was a causal connection between the protected activity and the adverse action. See Smith
v. City of Salem, 378 F.3d 566, 570 (6th Cir. 2004).
a. Dr. McTague’s prima facie case fails.
Viewing the evidence in the light most favorable to Dr. McTague, the Court finds
there is an issue of fact as to the first three factors, i.e., whether Dr. McTague’s
complaints constitute a “protected activity,” whether UC knew about the protected
activity, and whether UC took an adverse employment action against Dr. McTague by
denying her application for reappointment. The Court finds that Dr. McTague’s prima
facie case fails, however, because she cannot demonstrate a causal connection between
her complaints regarding discrimination in the Geography Department and UC’s denial
of her application for reappointment.
According to the Sixth Circuit, to establish a causal connection, a plaintiff must
“proffer evidence sufficient to raise the inference that her protected activity was the likely
reason for the adverse action.” EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir.
1997) (quotation omitted). The plaintiff must produce “sufficient evidence from which
one could draw an inference that the employer would not have taken the adverse action
against the plaintiff had the employer not engaged in activity that Title VII protects.”
Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 543 (6th Cir. 2003).
Here, Plaintiff has not proffered evidence that her complaints regarding
discrimination in 2012 were the “likely” reason for the denial of her reappointment
application. During Dr. McTague’s application for reappointment in 2009, four of the
five levels of review expressed concerns about her research. During her application in
2011, all five levels of review expressed concerns about her research, the Geography
Department faculty and Department Head Dr. Liu expressed doubt as to whether her
research record could support a successful tenure application in a few years, and Dean
Hardcastle voted against reappointment because she did “not see any realistic way” in
which Dr. McTague would be able to fulfill tenure and promotion requirements in two
In light of the facts that (1) Dr. McTague had already received a vote against
reappointment on account of her research record in 2011, (2) concerns about Dr.
McTague’s research production were documented as far back as 2009, and (3) there is no
evidence of other employees, who did not engage in a protected activity, being
reappointed after publishing just two articles in five years, the Court simply cannot infer
that UC would have approved Dr. McTague’s 2013 application for reappointment had
she not complained about discrimination in 2012.
b. UC has a legitimate, non-discriminatory reason.
Even assuming, arguendo, Plaintiff had presented a prima facie retaliation case,
that would not end the inquiry—the burden would shift to Defendant to articulate a nondiscriminatory reason for its decision. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516,
562 (6th Cir. 2008) (citation omitted). As explained supra, UC’s proffered reason for
denying Dr. McTague’s application for reappointment—her lack of publications—is a
legitimate, non-discriminatory reason. See Lynn v. Regents of Univ. of Cal., 656 F.2d at
c. There is no evidence of pretext.
Dr. McTague asserts two arguments as to why UC’s reliance on her lack of
publications is pretext for unlawful retaliation. First, Dr. McTague argues that her
application for reappointment was not evaluated fairly. Dr. McTague repeats her
argument that faculty members applied erroneous publication standards. She also argues
Dr. Liu did not “truly evaluate” her application, as indicated by the fact that he uploaded
his recommendation against reappointment only seven hours after Dr. McTague’s dossier
was available. (Doc. 70 at 76-78).
This argument is not well-taken. The Court is not a super-tenure committee. It is
not the Court’s job to ensure that faculty members properly evaluated Dr. McTague’s
application for reappointment or that Dr. Liu read every word in her dossier. It is the
Court’s job to ensure that UC’s proffered reason for denying her application—
insufficient publications—is not pretext for unlawful retaliation. In light of the years of
documented concerns regarding Dr. McTague’s research and publications, the proffered
reason is not pretext for unlawful retaliation.
Second, Dr. McTague argues UC did not react appropriately to her complaints.
Specifically, Dr. McTague argues there is no evidence that Dr. Tong or Mr. Nienaber
requested or initiated an investigation into her complaints. (Doc. 70 at 78-79). Dr.
McTague also takes issue with the fact that, upon hearing of her complaints, Dean
Jackson remarked that Dr. McTague was not willing to “work hard” to achieve tenure,
instead of commenting out of concern for her supposedly inequitable treatment. (Id. at
The Court disagrees. The (limited) evidence on this issue is that, upon hearing Dr.
Tong was concerned Dr. McTague might sue UC if her tenure application was denied:
(1) Mr. Nienaber requested a meeting with Mr. Bryan, Dr. Tong and Dr. Liu, and
(2) Dean Jackson responded that threatening litigation prior to a tenure decision would
suggest Dr. McTague had “no intent of working hard” to achieve tenure, but that he
“really want[ed] her to succeed with getting tenure” and “[w]e will do all we can in the
college to support her in her quest for tenure.” (Doc. 67-1 at 17-18). The Court cannot
infer a retaliatory motive from these limited facts.
For these reasons, UC’s motion for summary judgment is GRANTED on Dr.
McTague’s claim for Title VII retaliation.
B. Equal Pay Act.
The EPA states that no employer shall discriminate “between employees on the
basis of sex by paying wages to employees in such establishment at a rate less than the
rate at which he pays wages to employees of the opposite sex in such establishment for
equal work on the jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working conditions [.]” 29 U.S.C.
1. Dr. McTague has set forth a prima facie case.
To establish a prima facie EPA claim, a plaintiff must show that an employer paid
different wages to an employee of the opposite sex for substantially equal work.
Kovacevich v. Kent State Univ., 224 F.3d 806, 826 (6th Cir. 2000) (citation omitted).
“Equal work” does not require that the jobs be identical, but only that there exist
“substantial equality of skill, effort, responsibility and working conditions.” Id.
Dr. McTague argues she has asserted a prima facie EPA claim because (1) she
performed substantially equal work to Dr. Kim, Dr. Beck, and Dr. Widener (while they
were tenure-track Assistant Professors in the Geography Department) and (2) Dr.
McTague was compensated less than each of these professors. (Doc. 70 at 39-42).
The Court agrees that Plaintiff has she has asserted a prima facie EPA claim. Dr.
McTague, Dr. Kim, Dr. Beck and Dr. Widener were each (at one point) Assistant
Professors in the Geography Department, and their positions were governed by the
Geography Department’s RPT document. (See Doc. 39-1 at 32; Doc. 68-1 at 118; Doc.
68-1 at 116). During their tenure as Assistant Professors, Dr. McTague was paid less
than Dr. Kim, Dr. Beck and Dr. Widener. (Id.; Doc. 48-1 at 37-46). Viewing the facts in
a light most favorable to Dr. McTague, she has made a prima facie showing that she was
paid less than male Assistant Professors for equal work.
2. UC has not met its burden of proof on its affirmative defenses.
Once the plaintiff establishes a prima facie EPA case, the defendant must prove by
a preponderance of the evidence that the wage differential is justified under an
affirmative defense set forth in the EPA, i.e., that the payments were made pursuant to
(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by
quantity or quality of production; or (iv) a differential based on any other factor other
than sex. Id.; 29 U.S.C. § 206(d)(1).
Unlike the Title VII framework, in which defendants only have to assert a
legitimate, non-discriminatory reason for the treatment at issue, under the EPA, a
defendant bears the burden of proof in establishing an affirmative defense. Perkins v.
Rock-Tenn Servs., Inc., No. 16-1798, 2017 U.S. App. LEXIS 11772, at * 10 (6th Cir. June
30, 2017); see also Beck-Wilson v. Principi, 441 F.3d 353, 365 (6th Cir. 2006) (stating
that an EPA defendant “bears both the burden of persuasion and production on its
affirmative defenses.”). To be entitled to summary judgment, an EPA defendant must
establish its defense “so clearly that no rational jury could have found to the contrary.”
Principi, 441 F.3d at 365 (citation omitted). According to the Sixth Circuit, a defendant’s
burden is “a heavy one.” Id.
Here, UC argues that the salary differences are due to factors “other than sex.”
Defendant argues that the salaries of Dr. Kim and Dr. Widener were the result of “market
forces;” specifically, these professors were external candidates to whom UC had to offer
salaries which were competitive in the national market. (Doc. 50 at 54). UC also argues
that the salaries of Dr. Kim, Dr. Beck, and Dr. Widener were based on the fact that they
were candidates with established research records, whereas Dr. McTague was hired as an
assistant professor from her field service position, and did not have a research record.
(Doc. 72 at 31).
The Court agrees with UC that market factors involved in hiring external
candidates, as well as candidates’ publication records, constitute factors “other than sex”
for purposes of an EPA claim. However, the Court finds that UC has not met its burden
of proof on these affirmative defenses.
Dr. Kim was hired as a tenure-track Assistant Professor in 2008 at a salary of
$66,000. (Doc. 65 at ¶ 45; Doc. 39-1 at 32). Dean Hardcastle testified that Dr. Kim was
employed as a tenure-track faculty member at Minnesota State, and she “would have to
beat, in effect, his salary that he was getting there.” (Doc. 43 at 71-72). Dr. Liu, who
“played a role” in setting Dr. Kim’s salary, testified that Dr. Kim warranted a salary of
$66,000 due to his publications, though he could not remember the “details” of Dr. Kim’s
publications. (Doc. 48 at 17-18).
The Court finds these conclusory allegations insufficient to meet the “heavy”
burden of proof imposed on an EPA defendant.
UC has not proven that Dr. Kim’s salary was required to “beat” what he was
receiving at Minnesota State because neither Dean Hardcastle nor Dr. Liu testified what
Dr. Kim’s salary was at Minnesota State. UC has not proven that Dr. Kim’s salary was
justified because of his publications record because neither Dean Hardcastle nor Dr. Liu
knew the details of those publications and there is no analysis from which this Court
could conclude that the publications warranted a salary $14,000 higher than Dr. McTague
was offered just one year prior.
Dr. Beck was hired as a tenure-track Assistant Professor in 2009 at a salary of
$68,000. (Doc. 65 at ¶ 60; Doc. 68-1 at 116). Dean Hardcastle testified that she
remembered talking to Dr. Liu about “what [Dr. Beck] had done in terms of research and
grant scholars[.]” (Doc. 43 at 10). Dr. Liu testified that Dr. Beck’s salary was “based on
[his] merit” and the fact that he “had a long list of publications” and “several large
research grants.” (Doc. 48 at 23).
Again, this limited evidence is insufficient to meet UC’s burden of proof. There is
no evidence, analysis or argument indicating why Dr. Beck’s merit, grants, or
publications warranted a salary $16,000 higher than what Dr. McTague was offered two
years prior. The conclusory allegations relied on by UC simply do not establish its
affirmative defense “so clearly that no rational jury” could find otherwise.
Finally, Dr. Widener was hired as a tenure-track Assistant Professor in 2012 at a
salary of $70,000. (Doc. 48 at 45-46; Doc. 68-1 at 118). At the time, Dr. Widener had
not received his Doctorate degree. (Doc. 68-1 at 118). The only evidence justifying Dr.
Widener’s salary is Dr. Liu’s testimony that it was:
based on two [factors]: One is the market rate, and the other one is his
merit. At the time of application, he had six to seven refereed publications
in top journals. And at the time of employment, I think he had eight or
nine, which is—it’s very good, good publication record.
(Doc. 48 at 48).
Dean Hardcastle could not recall how $70,000 came about, and speculated it was
based on market rate:
So if [Dr. Widener] was coming from another position it would be: I need
to beat whatever his current salary was. If it’s not, then it’s the market rate,
the national market rate.
(Doc. 43 at 75).
Again, this limited evidence is insufficient to meet UC’s burden of proof. There is
no evidence as to what the “market rate” was for Dr. Widener, only speculation that what
he was offered was, in fact, the market rate. While it appears Dr. Widener had a superior
research background compared to Dr. McTague, Dr. Liu’s statement that he “thinks” Dr.
Widener had a good publication record is insufficient to establish that the disparity
between Dr. Widener’s and Dr. McTague’s salaries was based on a factor other than sex
“so clearly that no rational jury” could find otherwise, especially when Dr. Widener had
not even received his Doctorate degree at the time he was hired, yet was offered a higher
salary than Dr. McTague ever received, even after several years as a tenure-track
In conclusion, UC has set forth legitimate reasons, other than sex, that could
explain why Dr. McTague was paid less than the male Assistant Professors in the
Geography Department. UC may ultimately prevail on these defenses at trial. But at this
stage, the evidence identified by UC is simply too speculative and scarce for the Court to
find it has met its “heavy” burden of proof on these affirmative defenses. Accordingly,
UC’s motion for summary judgment is DENIED as to Dr. McTague’s claim for violation
of the EPA.
C. FMLA Interference and Retaliation.
1. Dr. McTague’s FMLA Interference Claim fails.
To prevail on an FMLA interference claim, a plaintiff must establish that: (1) she
was an eligible employee; (2) the defendant was an employer as defined under the
FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave
the employer notice of her intention to take leave; and (5) the employer denied the
employee FMLA benefits to which she was entitled. See Rush v. E.I. DuPont De
Nemours & Co., 911 F. Supp. 2d 545, 558 (S.D. Ohio 2012). The employer’s intent is
not a relevant part of an FMLA interference claim. Edgar v. JAC Prods., 443 F.3d 501,
507 (6th Cir. 2006).
UC argues that Dr. McTague cannot establish the fifth prong, i.e., that UC denied
Dr. McTague FMLA benefits to which she was entitled. (Doc. 50 at 56). It is undisputed
that Dr. McTague received the 12 weeks of FMLA leave to which she was entitled, was
allowed to take additional leave for the remainder of the 2011-2012 academic year, and
received an accompanying one-year extension on her applications for reappointment and
tenure. Still, Dr. McTague argues that UC interfered with her FMLA leave by
(1) requiring Dr. McTague to meet with graduate students while on leave and
(2) requiring Dr. McTague to conduct research while on leave and considering whether
Dr. McTague had submitted or published any papers during her FMLA leave while
evaluating her application for reappointment. The Court does not agree.
a. There is no evidence UC required Dr. McTague to meet with
students while on FMLA leave.
Dr. McTague has not set forth any evidence that UC interfered with her FMLA
leave by requiring her to meet with students. Dr. Wendy Eisner told Dr. McTague that
she would “take care of the students’ needs and questions, and will be advising them to
the best of [her] ability” while Dr. McTague was on leave. (Doc. 39 at 305, Doc. 39-5 at
1). Dr. McTague did not believe Dr. Eisner was doing a sufficient job in her stead, and
met with some of her students because she did not perceive them to be receiving the
assistance they required. (Doc. 39 at 306-07). However, Dr. McTague testified that UC
did not require her to meet with students while on leave:
Okay. Did anyone tell you you’ve got to go meet with this graduate
student, you know, while you were out on FMLA?
The graduate students – I think this was a different issue. No one
said I had to, but they were definitely being harmed.
You felt like they needed your assistance?
And it could have been detrimental to their timely graduation.
Okay. But no one in the department told you you have to meet with
this graduate student?
(Doc. 39 at 316:9-18).
In light of Dr. McTague’s admission that UC did not instruct her to meet with
students while on leave, and the fact that she does not point to evidence demonstrating
that she objected to meeting with these students, or that she asked UC to remedy the
situation, the evidence is that these meetings were voluntary, and, accordingly, they
cannot support an FMLA interference claim. See Soehner v. Time Warner Cable, Inc.,
No. 1:08-cv-166, 2009 U.S. Dist. LEXIS 106619 at ** 12-14 (S.D. Ohio Nov. 16, 2009)
(Black, J) (finding no FMLA interference where plaintiff “chose” to work while on leave
without informing his supervisor that he did not want to work or was too fatigued to do
b. There is no evidence UC required Dr. McTague to conduct research
or work on publications while on FMLA leave.
Dr. McTague argues that UC required her to conduct research and work on
publications while on FMLA leave, and that UC’s decision to not reappoint her was
based, in part, on the fact that she did not publish any articles during her FMLA leave.
(Doc. 70 at 23-27). The evidence is otherwise.
First, Dr. McTague does not have any evidence that she was instructed to conduct
research or work on publications. Dr. McTague did not know, and could not remember,
whether any professor in the Geography Department told her to work on her RPT folder
while out on FMLA or sick leave. (Doc. 39 at 317). Instead, she testified that she
“think[s] there were people who viewed [her] FMLA leave as time that [she] was
supposed to be producing research,” and the pressure to do research “was there, whether
someone said it or not.” (Doc. 40 at 194-95). This vague, conclusory testimony is
insufficient to create a genuine issue of material fact as to whether UC required Dr.
McTague to conduct research or publish articles while on leave.
Dr. McTague argues that emails from Dr. Tong and Ms. Herman suggested that
she needed to “make progress” on her RPT folder. (Doc. 70 at 23). The Court does not
agree. Ms. Herman was Dr. McTague’s AAUP representative, not Dr. McTague’s
supervisor, and Ms. Herman’s statement that she “hope[d]” on a “personal level” that Dr.
McTague would have time to work on her RPT folder does not suggest that Dr. McTague
was required to do so by UC while on leave. (Doc. 39-5 at 9). Similarly, Dr. Tong’s
statement in 2011 that one “option” for Dr. McTague was to “take a family leave” to
“buy some time” was just that—an option—suggested by Dr. Tong while she was
“brainstorming” ideas to help Dr. McTague. (Doc. 39-4 at 8). Even if Dr. Tong was
implying that Dr. McTague could use her FMLA leave to improve her RPT folder in
anticipation of her next application for reappointment, there is still no evidence that Dr.
McTague was required by UC to conduct research once she took FMLA leave.
Second, Dr. McTague does not have any evidence that her FMLA leave was “used
against her” in her 2013 reappointment evaluation. Dr. McTague’s entire evidence on
this point is Dr. Dunning’s testimony that, during the Geography Department RPT
committee meeting, Dr. Stepinski made a comment “to the effect of, ‘Well, we all know
[Dr. McTague] has actually had two years’” since her last application for reappointment.
(Doc. 41 at 5-16).
This statement is insufficient to create a material issue of fact. Initially, the
statement is factually accurate. When Dr. McTague applied for reappointment in
February, 2011, she was awarded a one-year reappointment. When Dr. McTague took
FMLA for one academic year, UC extended her reappointment period for one year as
well, with the result that her next application for reappointment was due in the spring of
2013, instead of the spring of 2012. (Doc. 40-1 at 14).
Dr. McTague asks the Court to infer from Dr. Stepinski’s statement that he was
instructing other faculty members to consider whether Dr. McTague conducted research
or published articles during the 10 months she was on FMLA leave. (Doc. 70 at 25).
The Court cannot/will not make that inference. While considering a motion for summary
judgment, courts are compelled to draw all inferences in favor of the nonmoving party
“to the extent supported by the record.” Scott v. Harris, 550 U.S. 372, 381, n.8 (2007)
(emphasis supplied). There is nothing in the record to support Dr. McTague’s
interpretation of Dr. Stepinski’s statement, which is presented as hearsay and without any
context or foundation. Tellingly, not one faculty member testified that he/she considered
Dr. McTague’s FMLA leave to be a period of time she was expected to be researching
and publishing articles. Further, Dr. Tong, who was the Interim Geography Department
Head, and present at the RPT committee meeting where Dr. Stepinski made this
comment, correctly stated in her recommendation that, by August 2014, Dr. McTague
would have been a tenure-track assistant professor for six years. 7 (Doc. 40-2 at 83).
The Court notes that fall 2007 to fall 2014, minus the 2011-2012 academic year Dr. McTague
was on leave, is six academic years.
Finally, even if the Court were to construe Dr. Stepinski’s statement that Dr.
McTague “had two years” as an instruction that faculty were to consider whether Dr.
McTague published any articles while on FMLA leave, UC would still be entitled to
summary judgment. As the Sixth Circuit has explained, the FMLA is not a strict liability
statute, and employees seeking relief under the theory that they have been denied benefits
to which they are entitled must establish that the employer’s violation caused them harm.
Edgar v. JAC Prods., 443 F.3d 501, 507-08 (6th Cir. 2006). An employer is entitled to
summary judgment on an FMLA interference claim if the employee is unable to make a
showing of prejudice. See Coker v. McFaul, 247 Fed. Appx. 609, 619 (6th Cir. 2007).
Here, even if Dr. McTague could demonstrate that faculty members considered
her year of leave while evaluating her 2013 reappointment application (and she cannot),
she cannot demonstrate prejudice because there is no evidence to remotely suggest she
would have successfully been reappointed if the 2011-2012 academic year had been
completely excluded from her review. First, there is no direct evidence on this point, as
no faculty member testified Dr. McTague would have been reappointed if not for
consideration of her FMLA leave. Second, Dr. Stepinski, who supposedly made the
comment at issue, testified that Dr. McTague’s research production was insufficient to
warrant reappointment even if her year of leave was excluded. (Doc. 37 at 121-22).
Third, Interim Department Head Dr. Tong properly excluded Dr. McTague’s year of
FMLA leave and still voted against reappointment. (Doc. 40-2 at 83). Fourth, Dr.
McTague cannot show prejudice through circumstantial evidence, because she cannot
identify any other faculty member who was reappointed after publishing just two articles
in five years, or who was granted tenure after publishing just three articles in six years.
The record simply does not contain any evidence from which this Court could infer Dr.
Stepinski’s comment resulted in prejudice to Dr. McTague.
Accordingly, UC’s motion for summary judgment is GRANTED as to Dr.
McTague’s claim for FMLA interference.
2. Dr. McTague’s FMLA Retaliation Claim fails.
Dr. McTague claims UC denied her 2013 application for reappointment in
retaliation for her taking FMLA leave. The Court does not agree.
Employers may not “discriminat[e] against employees . . . who have used FMLA
leave,’ nor can they ‘use the taking of FMLA leave as a negative factor in employment
actions.” Travers v. Cellco P’Ship, 579 Fed. Appx. 409, 415 (6th Cir. 2014) (citation
omitted). The court applies the familiar McDonnell Douglas burden-shifting test to
FMLA retaliation claims. Edgar, 443 F.3d at 508. A plaintiff can make a prima facie
case of discrimination by showing that (1) she availed herself of a protected right under
the FMLA by notifying her employer of her intent to take leave, (2) she suffered an
adverse employment action, and (3) that there was a causal connection between the
exercise of her rights under the FMLA and the adverse employment action. Id.
If the employee satisfies these three requirements, the burden shifts to the
employer to proffer a legitimate, nondiscriminatory rationale for discharging the
employee. Id. If the employer proffers a legitimate reason, the burden shifts to the
employee to show pretext—that is, that the employer’s reason was false and that the real
reason for the employee’s termination was FMLA retaliation. Travers v. Cellco P’ship,
579 Fed. Appx. 409, 416 (6th Cir. 2014).
Here, UC has proffered a legitimate reason for the denial of her reappointment—
insufficient research—and Dr. McTague cannot demonstrate that reason is pretext for
Dr. McTague sets forth three arguments she claims indicates UC’s proffered
reason is pretext for FMLA retaliation: (1) UC imposed a six-publication requirement to
Dr. McTague’s application compared to a three-publication requirement established prior
to her FMLA leave; (2) the newly imposed requirement of six publications was neither
reflected in nor consistent with any Departmental requirements or documented RPT
standards; and (3) other faculty members in the Department, including Dr. Kim and Dr.
Beck, who had not taken FMLA leave, were not subject to the six publication
requirement, yet they were granted tenure. (Doc. 70 at 34). The Court does not agree.
Dr. McTague’s first argument fails because there is no evidence that Dr. McTague
was ever subject to a three-publication requirement (for tenure or for reappointment)
prior to taking FMLA leave. Dr. McTague is apparently relying on Dr. Tong’s April 6,
2011 email, in which Dr. Tong suggests that Dr. McTague “get two papers out ASAP,
and embark on a short project and get a publication or two out in a year or so[.]” (Doc.
39-4 at 8). Dr. Tong made this suggestion (among others) while “brainstorming” some
“options” to help Dr. McTague, and never indicated that three publications would be
sufficient to secure reappointment or tenure. (Id.) Accordingly, Dr. Tong did not “move
the target” when evaluating Dr. McTague’s reappointment application under the
assumption that she would have to have six articles published by the time she applied for
tenure in 2014 (after completing six years as a tenure-track Assistant Professor).
As to Dr. McTague’s second and third arguments, they fail for the reasons set
forth in Section VI(A)(2), supra: the Court is not concerned with whether faculty
members imposed the “right” publication requirements in the absence of any evidence of
unlawful retaliation, and there is no evidence that Dr. McTague—who had published two
articles in five years at the time she applied for reappointment in 2013—was subject to
higher publication standards than Dr. Kim and Dr. Beck, both of whom had a record of
publishing at least one paper per year during their time as tenure-track Assistant
UC’s decision to deny Dr. McTague’s 2013 application for reappointment is
consistent with documented concerns regarding her research as far back as 2009. There
is no evidence from which this Court could infer FMLA retaliation was the “real” reason
for the denial. Accordingly, UC’s motion for summary judgment is GRANTED as to
Dr. McTague’s claim for FMLA retaliation.
For these reasons:
UC’s motion for summary judgment (Doc. 50) is GRANTED as to Dr.
McTague’s claims for Title VII gender discrimination (Count I), Title VII
retaliation (Count II), and FMLA interference and retaliation (Count IV);
UC’s motion for summary judgment (Doc. 50) is DENIED as to Dr.
McTague’s claim for violation of the Equal Pay Act (Count III).
IT IS SO ORDERED.
Timothy S. Black
United States District Judge
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