Hargrave v. University of Washington et al

Filing 96

ORDER granting 33 Defendants' Motion for Summary Judgment; denying 42 Plaintiff's Motion for Partial Summary Judgment by Judge James L. Robart.(MD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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TIMOTHY J. HARGRAVE,

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Plaintiff,

CASE NO. C14-0376JLR
ORDER ON CROSS MOTIONS
FOR SUMMARY JUDGMENT

v.

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UNIVERSITY OF WASHINGTON, et
al.,

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Defendants.
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I.

INTRODUCTION

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Before the court are Defendants’ motion for summary judgment (Def. MSJ (Dkt.
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# 33)) and Plaintiff’s motion for partial summary judgment (Plf. MSJ (Dkt. # 42)). This
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case arises because Defendant University of Washington (“the University”) denied
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Plaintiff Timothy Hargrave tenure and a promotion to associate professor. Having
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considered the submissions of the parties, the balance of the record, and the relevant law,
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ORDER- 1

1 and having heard oral argument, the court grants Defendants’ motion for summary
2 judgment and denies Plaintiff’s motion for summary judgment.
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II.

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BACKGROUND

Dr. Hargrave is an organizational sociologist who worked as an assistant professor

5 at the University’s Bothell School of Business from 2006 to 2012. (See Dkt. # 34-3 at
6 73-87 (“Hargrave CV”); Gautschi Decl. (Dkt. # 63) Ex. 14 (“2012 Statement”).) Dr.
7 Hargrave has sued the University for age, race, and national origin discrimination, and
8 has sued five University employees for aiding and abetting the University’s sex, age,
9 race, and national origin discrimination. (Am. Compl. (Dkt. # 12).) The individual
10 defendants are Susan Jeffords, Vice Chancellor for Academic Affairs; Sandeep
11 Krishnamurthy, Dean of the Bothell School of Business, and three tenured Bothell School
12 of Business (“the Business School”) faculty members, P.V. Balakrishnan, Gowri
13 Shankar, and Pradyot Sen.1 (Id.) The facts are as follows.
14 A.

Tenure Criteria

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The University’s Faculty Code establishes the general criteria for obtaining tenure

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16 and for being promoted to associate professor. Specifically, the Faculty Code provides:

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Tenure should be granted to faculty members of such scholarly and
professional character and qualifications that the University, so far as its
resources permit, can justifiably undertake to employ them for the rest of

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Dr. Hargrave previously dismissed Defendants Cheryl Cameron, Vice Provost for Academic

20 Personnel, and Dr. James Miller, a tenured Business School faculty member, from the suit. (Stip.
Dismissal (Dkt. # 90).)

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As in Dr. Hargrave’s situation, the two processes often occur concurrently. (See Dkt. # 34-3 at
48 (Business School guidelines listing the same criteria for both).)
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ORDER- 2

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their academic careers. Such a policy requires that the granting of tenure be
considered very carefully. It should be a specific act, even more significant
than promotion in academic rank, which is exercised only after careful
consideration of the candidate’s scholarly and professional character and
qualifications.

4 (Peterson Decl. (Dkt. # 34) Exs. A, B, H (“Faculty Code”) § 25-41.) With respect to
5 promotion, “[a]ppointment to the rank of associate professor requires a record of
6 substantial success in both teaching and research, except that in unusual cases an
7 outstanding record in one of these activities may be considered sufficient.” (Id. § 24-34.)
8 The considerations relevant to evaluating a candidate’s scholarly and professional
9 qualifications are “scholarship and research, teaching, and service.” (Id. § 24-32.)
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The Business School has adopted guidelines further elucidating the application of

11 the University’s tenure and promotion standards to Business School faculty. (Peterson
12 Decl. Ex. D (“Shankar Dep.”) at 29:13-32:24; Dkt. # 34-3 at 48 (“Tenure Guidelines”)
13 (listing “Criteria for Promotion and Tenure”).) The Business School criteria state that
14 “[t]he candidate for tenure and promotion to the rank of Associate Professor must show
15 promise of attaining a national reputation.” (Id.) Although “a number of different types
16 of scholarly contributions are valued,” the Business School requires that “there must be a
17 base of publications in high-quality refereed journals.” (Id.)
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The Business School’s tenure review process consists of multiple stages. (Faculty

19 Code at 4-5.) To begin, the candidate prepares an extensive dossier of his or her
20 professional accomplishments, which can consist of hundreds of pages. (Peterson Decl.
21 Ex. I (“Krishnamurthy Dep.”) at 17:2-15; Faculty Code § 24-54; Krishnamurthy Decl.
22 (Dkt. # 37) ¶ 7.) The candidate is responsible for making her best case for tenure.
ORDER- 3

1 (See Peterson Decl. Ex. E (“Cauce Dep.”) at 27:7-10; Hargrave Dep. at 209:3-9; Faculty
2 Code § 24-54.) The candidate’s dossier is first evaluated by a “Promotion and Tenure
3 Committee” (“P&T Committee”), which consists of three tenured professors, two of
4 whom are from the candidate’s department. (Faculty Code § 24-54; Peterson Decl. Ex. F
5 (“Jeffords Dep.”) at 11:1-25.) The P&T Committee also solicits at least four letters of
6 review from scholars external to the University in the candidate’s field. (Holland Dep. at
7 15:14-16:5.) Those reviewers provide an outside perspective on the candidate’s
8 scholarship. (Id.; see also Dkt. # 34-3 at 71-72 (sample external review letter).) The
9 P&T Committee makes a recommendation to the senior faculty of the candidate’s
10 department, who then vote. (Faculty Code § 24-54; Jeffords Dep. at 11:1-25.) The dean
11 of the department writes a report summarizing the vote and the faculty proceedings, as
12 well as making an independent recommendation regarding tenure. (Faculty Code § 2413 54; Jeffords Dep. at 11:1-25.) At this time, the candidate has an opportunity to provide
14 additional input in response to the report. (Peterson Decl. Ex. G (“Cameron Dep.”) at
15 19:19-20-22.) The dean provides his or her report and recommendation to the Campus
16 Council on Promotion, Tenure, and Faculty (“Campus Council”), which consists of six
17 faculty elected from academic units across the campus. (Faculty Code § 24-54; Jeffords
18 Dep. at 11:1-25.) The Campus Council reviews the preceding faculty process to ensure it
19 was fair, and make an independent recommendation regarding tenure. (Faculty Code
20 § 24-54; Jeffords Dep. at 11:1-25.) The materials are then reviewed by the Vice
21 Chancellor for the campus, who makes a recommendation to the Chancellor. (Faculty
22 Code § 24-54; Jeffords Dep. at 11:1-25.) After reviewing the materials, the Chancellor
ORDER- 4

1 makes a recommendation to the Provost. (Faculty Code § 24-54; Jeffords Dep. at 11:12 25.) The Provost makes an independent recommendation to the President, who
3 ultimately decides whether to award tenure. (Faculty Code § 24-54; Jeffords Dep. at
4 11:1-25.)
5 B.

Dr. Hargrave’s Tenure Reviews

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Dr. Hargrave underwent his first tenure review process in 2011-12.

7 (Krishnamurthy Decl. at 2; Cameron Decl. (Dkt. # 36) at 2.) At the time, his curriculum
8 vitae included only four scholarly publications: (1) a co-authored article published in
9 Academy of Management Review in 2006 (“the AMR article”); (2) a single-authored
10 article published in the Business Ethics Quarterly, published in 2009 (“the Business
11 Quarterly article”), and (3) two co-authored book chapters, published in 2004 and 2009.
12 (See Nye Decl. (Dkt. # 56) ¶¶ 7-9.) In addition, in 2011, Dr. Hargrave had two potential
13 papers pending review at other journals, namely, Academy of Management Journal and
14 Organizational Science. (See Gautschi Decl. (Dkt. # 63) Ex. 2 (“2011 External
15 Reviews”).)
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The co-authored articles and chapters were authored in conjunction with his

17 dissertation chair, Dr. Van de Ven. (Nye Decl. ¶¶ 7-9.; Van de Ven Decl. (Dkt. # 59)
18 ¶¶ 5-7.) It is undisputed that the AMR article, which was published in a top management
19 journal, has been influential and frequently cited in the field of institutional theory. (See,
20 e.g., Laverty Decl. (Dkt. # 57) ¶ 8; Gautschi Decl. Ex. 5 (“Collins Dep.”) at 3:14-23
21 (P&T committee member explaining, “[W]e thought it was a seminal piece.”); Peterson
22 Decl. Ex. 15 (“2011 Dean Rec.”); Hargrave Dep. at 89:1-7.) Two of Dr. Hargrave’s five
ORDER- 5

1 external reviewers mentioned the impact of the AMR article. (See, e.g., 2011 External
2 Reviews. at 17 (“The 2006 AMR paper is simply outstanding and has made a major
3 impact on the field.”).) In general, the reviewers recommended awarding Dr. Hargrave
4 tenure. (See generally 2011 External Reviews.)
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After reviewing Dr. Hargrave’s dossier and external review letters, the P&T

6 Committee recommended promotion and tenure. (Gautschi Decl. (Dkt. # 63) Ex. 10
7 (“2011 P&T”).) The P&T Committee acknowledged the “question of whether [Dr.
8 Hargrave] had a sufficient number of publications to warrant P&T.” (Id.) Nonetheless,
9 the Committee concluded that “the quality, reputation, and future promise of Tim’s
10 publications outweigh any questions regarding the volume of his work to date.” (Id.)
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The seven senior faculty members, however, were divided: three voted in favor of

12 promotion, three opposed, and one abstained. (Peterson Decl. Ex. 15 (“2011 Dean
13 Rec.”).) Dean Krisnamurthy’s letter to Dr. Hargrave explained, “While some faculty
14 members noted the quality and impact of your research, a significant subset of the senior
15 faculty believed that your published research output was below the average expected and
16 did not indicate “‘substantial success’ . . . in research.” (Peterson Decl. Ex. 11 (“2011
17 Letter”) at 1.) The voting senior faculty members included defendants Dean
18 Krishnamurthy, Dr. Shankar, and Dr. Balakrishnan. (Laverty Decl. ¶ 14.) Dr. Laverty
19 testifies that, at the faculty tenure meeting, those defendants argued strenuously against
20 granting tenure to Dr. Hargrave. (Id.)
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Dean Krishnamurthy individually recommended against promotion and tenure.

22 (2011 Dean Rec.) In his recommendation, he expressed concerns about Dr. Hargrave’s
ORDER- 6

1 “publication trajectory,” the quality of the work in his research pipeline, and his reliance
2 on his former dissertation advisor as a research partner. (Id.)
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The Campus Council, however, voted unanimously in favor of awarding tenure.

4 (Peterson Decl. Ex. 13 (“2011 Council Rec.”) The Campus Council concluded that the
5 review process to that point had been “thorough, fair, and in full accordance with
6 [University] procedures.” (Id.)
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Confronted with the faculty’s divided opinions, Vice Chancellor Jeffords

8 recommended that Hargrave’s tenure decision be postponed for a year, in order to give
9 Dr. Hargrave time to address the deficiencies identified in his research record. (Peterson
10 Decl. Ex. 50 (“2011 Chancellor Letter”).) The Chancellor concurred. (Id.)
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The Provost and current Interim President, Ms. Ana Marie Cauce, also agreed to

12 postpone Dr. Hargrave’s tenure decision for one year.3 (Cauce Dep. at 5:17-7:4.) The
13 Provost was concerned that Dr. Hargrave’s “publication record was . . . not strong.” (Id.
14 at 21:4-23.) She noted both the limited quantity of publications and the declining quality:
15 his first and best paper had come during his time as a graduate student working with his
16 dissertation advisor. (Id. at 21:4-23:4.)
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Dr. Hargrave’s tenure review the following year fared worse. In the meantime, his

18 two papers pending review had not been published: one had been withdrawn, and the
19 other was rejected. (Peterson Ex. 31 (“2012 Dean Rec.”) at 1; Hargrave Dep. at 83:1320
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The Campus Council members, the Chancellor, and the Provost are not defendants in this suit.
Dr. Hargrave admits that the Campus Council did not discriminate against him when reviewing his tenure
22 application. (Hargrave Dep. at 169:9-12.)

ORDER- 7

1 15, 87:4-20, 89:11-22.) Dr. Hargrave had managed to publish one new article in a lower
2 ranked journal, Business and Society Review. (Hargrave Dep. at 95:20-25.) It is
3 undisputed that the Business and Science Review is the lowest quality of the journals in
4 which Dr. Hargrave was published. (Id.) Dr. Hargrave’s failure to publish caused one
5 external reviewer to change his recommendation from awarding to denying tenure;
6 however, other external reviewers continued to support Dr. Hargrave’s candidacy. (Id.;
7 Gautschi Decl. Ex. 6 (“2012 Reviews”) at 59, 64-65.)
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In the 2012-13 review, a different P&T Committee again recommended tenure.

9 (Peterson Decl. Ex. L (“Sen Dep.”) at 57:1-11). This time, however, the senior Business
10 School faculty voted four against tenure, three in favor of tenure, and one abstaining.
11 (2012 Dean Rec. at 1.) Dr. Krishnamurthy’s letter to Dr. Hargrave explained that the
12 faculty had found a “low research output with significant gaps and . . . a systemic
13 downward trend in quality.” (Peterson Ex. 64 (“2012 Letter”).)
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The faculty members present included Dean Krishnamurthy, Dr. Balakrishnan, Dr.

15 Shankar, and Dr. Sen. (Laverty Decl. ¶¶ 12-13.) Dr. Laverty and Dr. Nye testify that, at
16 the faculty tenure meeting, those defendants argued strenuously against granting tenure to
17 Dr. Hargrave. (Id.; Lye Decl. (Dkt. # 56) ¶¶ 7, 9.) Dr. Hargrave’s written response to the
18 vote was added to his dossier. (Krishnamurthy Decl. ¶ 4; 2012 Statement.)
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Dean Krishnamurthy again recommended against tenure and promotion, citing Dr.

20 Hargrave’s recent setbacks in the publication process. (2012 Dean Rec.) The Campus
21 Council changed its recommendation to denying tenure. (Peterson Ex. 18 (“2012 Council
22 Rec.”) (“Despite early success with a high impact publication, the record indicates that
ORDER- 8

1 Dr. Hargrave has yet to establish a substantial research program independent of his
2 research advisor and commensurate with the expectations of the [Business School].”) .)
3 So did Vice Chancellor Jeffords and the Chancellor. (Peterson Ex. 51 (“2012 Chancellor
4 Letter”).) After reviewing the materials, the Provost decided to deny tenure. (Cauce
5 Dep. at 29:16-32:6.) She found that, in the intervening year, Dr. Hargrave had not
6 achieved the academic success necessary to earn tenure. (Id.)
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After Dr. Hargrave was denied tenure, he commenced an internal administrative

8 appeal against Dean Krishnamurthy, Vice Chancellor Jeffords, Vice Provost Cameron,
9 and Provost Cauce. (See 2d Gautschi Decl. (Dkt. # 67) Ex. 2 (“Petition”); Faculty Code
10 § 28.) He argued that the respondents failed to comply with the Faculty Code when they
11 denied his tenure application. (Petition.) The Chair of the University’s Adjudication
12 Panel found that, although the Panel could not reconsider Dr. Hargrave’s entitlement to
13 promotion and tenure on the merits, it could determine whether the decision was affected
14 by factors other than the relevant and permissible considerations to a tenure decision.
15 (Cameron Decl. Ex. D (“Chair Letter”).) The Chair also determined that the Panel would
16 “clearly” have the authority to direct the University to conduct another tenure review that
17 complied with the University’s requirements. (Id.) Nonetheless, after receiving
18 unfavorable preliminary discovery rulings from the Panel, Dr. Hargrave voluntarily
19 withdrew his appeal. (Cameron Decl. Ex. C (“Withdrawal Letter”).)
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Dr. Hargrave also filed a claim with the Equal Employment and Opportunity

21 Commission (“EEOC”), alleging discrimination on the basis of race and age, but not
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ORDER- 9

1 national origin or sex. (Cameron Decl. Ex. A (“EEOC Charge.”).) The EEOC, however,
2 dismissed his charges. (Id. Ex. B.)
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Dr. Hargrave then initiated this lawsuit. Dr. Hargrave brings the following claims

4 against the following defendants:
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o The University: Discrimination on the basis of race and national origin4 in

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violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2

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(“Title VII”); Discrimination on the basis of age, race, and national origin in

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violation of the Washington Law Against Discrimination (“WLAD”), RCW

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49.60.180; Breach of contract;

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o Dr. Krishnamurthy, Dr. Balakrishnan, and Dr. Shankar: Aiding and abetting

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discrimination on the basis of sex, age, race, and national origin in violation of

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WLAD, RCW 49.60.220;

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o Ms. Jeffords: Aiding and abetting discrimination on the basis of age, race, and

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national origin in violation of WLAD, RCW 49.60.220;
o Dr. Sen: Aiding and abetting discrimination on the basis of sex in violation of

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WLAD, RCW 49.60.220.

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Dr. Hargrave admits that he cannot bring a Title VII sex discrimination claim against the

18 University because he did not include an allegation of sex discrimination in his EEOC complaint. (Resp.
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to MIL (Dkt. # 92) at 4; see also EEOC Charge); Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632,
636 (9th Cir. 2002) (holding that plaintiffs are required to exhaust administrative remedies by filing a
timely charge with the EEOC before initiating litigation). The parties dispute whether Dr. Hargrave’s
national origin Title VII claim is barred because he did not allege national origin discrimination in his
EEOC charge. (See Def. Mot. at 37 n.24); see EEOC Charge. The court notes that “[e]ven when an
employee seeks judicial relief for claims not listed in the original EEOC charge, the complaint
nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC
charge.” Freeman, 291 F.3d at 636. Because it is undisputed that Dr. Hargrave can raise a national origin
discrimination claim under the WLAD (Def. Mot. at 37 n.24), the court finds it unnecessary to decide the
issue for purposes of this order.

ORDER- 10

1 (Am. Compl. (Dkt. # 12).) Defendants have moved for summary judgment on all claims.
2 (Def. Mot.) Plaintiff has moved for partial summary judgment on his breach of contract
3 claim against the University. (Plf. Mot.) Those motions are now before the court.
4

III.

ANALYSIS

5 A.

Summary Judgment Standard

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Federal Rule of Civil Procedure 56 permits a court to grant summary judgment

7 where the moving party demonstrates (1) the absence of a genuine issue of material fact
8 and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
9 317, 322 (1986); see also Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The
10 moving party bears the initial burden of showing the absence of a genuine issue of
11 material fact. Celotex, 477 U.S. at 323.
If the moving party does not bear the ultimate burden of persuasion at trial, it can

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13 show the absence of an issue of material fact in two ways: (1) by producing evidence
14 negating an essential element of the nonmoving party’s case, or (2) by showing that the
15 nonmoving party lacks evidence of an essential element of its claim or defense. Nissan
16 Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000).
If the moving party meets its burden of production, the burden then shifts to the

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18 nonmoving party to identify specific facts from which a factfinder could reasonably find
19 in the nonmoving party’s favor. Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby,
20 Inc., 477 U.S. 242, 252 (1986). In determining whether the fact finder could reasonably
21 find in the nonmoving party’s favor, “the court must draw all reasonable inferences in
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ORDER- 11

1 favor of the nonmoving party, and it may not make credibility determinations or weigh
2 the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
3 B.

Discrimination Claims

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1. Legal framework

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Dr. Hargrave’s state and federal discrimination claims are all evaluated under the

6 standard applicable to federal Title VII claims. See Scrivener v. Clark Coll., 334 P.3d
7 541, 544 (Wash. 2014) (stating that the federal standard for evaluating Title VII claims
8 applies to WLAD claims); Hegwine v. Longview Fibre Co., 172 P.3d 688, 696 (Wash.
9 2007) (same); Grimwood v. Univ. of Puget Sound, Inc., 110 Wash. 2d 355, 361-62, 753
10 P.2d 517, 520 (Wash. 1988) (same). In general, an employer is liable under Title VII if a
11 plaintiff’s race, religion, sex, or national origin was either the sole reason or motivating
12 factor for the employer’s decision not to promote the plaintiff. Costa v. Desert Palace,
13 Inc., 539 U.S. 90, 101-02 (2003); see also Dominguez-Curry v. Nevada Transp. Dep’t,
14 424 F.3d 1027, 1040-41 (9th Cir. 2005); 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B).
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In their summary judgment briefing, both parties rely on the burden-shifting

16 McDonnell Douglas approach to Title VII claims. (See Def. Mot.; Plf. Resp.); see also
17 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this approach, a
18 plaintiff may establish a prima facie case of a violation of Title VII by introducing either
19 direct or indirect evidence that an employer discriminated against him or her on an
20 impermissible basis. Mondero v. Salt River Project, 400 F.3d 1207, 1211 (9th Cir. 2005);
21 Lynn v. Regents of Univ. of Calif., 656 F.2d 1337, 1340 (9th Cir. 1981). “The burden of
22 establishing a prima facie case is not onerous.” Lynn, 656 F.2d at 1340. To establish a
ORDER- 12

1 prima face case by indirect evidence, a plaintiff “must show that (1) he belongs to a
2 protected class; (2) he was qualified for the position; (3) he was subject to an adverse
3 employment action; and (4) similarly situated individuals outside his protected class were
4 treated more favorably.” See also Chuang v. Univ. of Calif. Davis, Bd. of Trustees, 225
5 F.3d 1115, 1123-24 (9th Cir. 2000).
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A prima facie case “raises an inference of discrimination.” Lynn, 656 F.2d at

7 1344. To dispel the adverse inference, the employer need only “articulate some
8 legitimate, non-discriminatory reason for the employee’s rejection.” Id. If the employer
9 articulates such a reason, the burden shifts to the plaintiff to show that the reason was “a
10 pretext or discriminatory in its application.” Id. at 1345.
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A plaintiff can show pretext “either directly by persuading the court that a

12 discriminatory reason more likely motivated the employer or indirectly by showing that
13 the employer’s proffered explanation is unworthy of credence” because it is inconsistent
14 or otherwise not believable. Chuang, 225 F.3d at 1123-24; Mondero, 400 F.3d at 1213;
15 see also Dominguez-Curry, 424 F.3d at 1037. “Generally, there are three types of
16 evidence that can be used to show pretext: (1) direct evidence of discrimination, such as
17 discriminatory statements or admissions, (2) comparative evidence, and (3) statistics.”
18 Penk v. Or. State Bd. of Higher Educ., 816 F.2d 458, 462 (9th Cir. 1987). A “reason
19 cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the
20 reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v.
21 Hicks, 509 U.S. 502, 515 (1993). If a plaintiff raises a genuine issue of fact with respect
22 to pretext, summary judgment is inappropriate. See Mondero, 400 F.3d at 1213
ORDER- 13

1

2. Application to Dr. Hargrave’s claims

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For purposes of this motion, Defendants do not contest Dr. Hargrave’s assertion

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3 that he can establish a prima facie case of discrimination by indirect evidence. (See Def.

4 Mot. at 25; Plf. Resp. at 33-36.) Instead, the University asserts that it properly declined
5 to award tenure to Dr. Hargrave on the basis that his scholarship was deficient. (Def.
6 Mot. at 25 (“The University did not award tenure to Dr. Hargrave because it concluded
7 he had not met the high standards to earn that distinction, focusing particularly on his
8 research record.”). “Without doubt, deficient scholarship is a legitimate,
9 nondiscriminatory reason to deny . . . tenure.” Lynn, 656 F.2d at 1344; Dominguez10 Curry, 424 F.3d at 1037. Accordingly, the burden shifts to Dr. Hargrave to show that the
11 University’s explanation is “inconsistent or otherwise not believable.” Dominguez12 Curry, 424 F.3d at 1037.
13

Dr. Hargrave relies almost entirely on comparative evidence to show pretext. (Plf.

14 Resp. (Dkt. # 54) at 36-37.) He claims that his academic record surpassed those of three
15 similarly situated professors who were recently granted tenure at the Bothell School of
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Dr. Hargrave’s contention that he has put forth direct evidence is incorrect. “Direct evidence is
evidence which, if believed, proves the fact of discriminatory animus without inference or presumption.”
Coghlan v. Am. Seafoods Co. L.L.C., 413 F.3d 1090, 1095 (9th Cir. 2005) (internal punctuation omitted).
Direct evidence “typically consists of clearly sexist, racist, or similarly discriminatory statements or
actions by the employer.” Dominguez-Curry, 424 F.3d at 1038 (quoting Coghlan, 413 F.3d at 1095). Dr.
Hargrave, however, has admitted that he is unable to recall any specific instance in which any of the
faculty made discriminatory remarks or treated him in a discriminatory fashion. (Hargrave Dep. at 69:771:2.) Dr. Hargrave insists that statements the faculty made concerning the future “trajectory” of his
research constitute age discrimination, because older candidates presumably have a shorter future in
which to establish a trajectory. (Plf. Resp. at 33.) That contention is misguided. Such remarks are not
clearly ageist or otherwise discriminatory. See Dominguez-Curry, 424 F.3d at 1038. Therefore, the court
concludes that Dr. Hargrave has failed to put forth direct evidence of discrimination.
5

ORDER- 14

1 Business.6 Out of concern for the comparators’ privacy, the parties have agreed to refer
2 to them as Dr. A, Dr. B, and Dr. C. (Id.) Their qualifications are as follows.
3

Dr. A, a native of Colombia, was granted tenure in 2012. (Gautschi Decl. Ex. 8

4 (“Comparator CVs”); Dean Comp. Letters (Dkt. # 76) at 11 (letters from the Dean to
5 Vice Chancellor Jeffords summarizing the faculty vote on each comparator and making a
6 recommendation); VC Comp. Letters (Dkt. # 41-1) (letters from Vice Chancellor Jeffords
7 to the Provost addressing each comparator’s tenure application.).) At the start of his
8 review process in 2011, he had published three papers; by 2012, he had published two
9 more. (See Cameron Decl. Ex. D (email telling the Provost about the recent
10 publications); Comparator CVs; Dean Comp. Letters.) The Business School faculty
11 voted 7-0 in favor of tenure, and the Dean recommended tenure. (Id.)
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Dr. C, a native of India, was hired as an associate professor in 2013 and granted

13 tenure in 2014. (VC Comp. Letters; Dean Comp. Letter.) At the time of his tenure
14 review, he had published six scholarly articles in peer-reviewed journals, three in the
15 previous five years. (Id.) The Business School faculty voted four to zero in favor of
16 tenure, and the Dean recommended tenure. (Dean Comp. Letters.)
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Dr. B, a Caucasian female, went through tenure review in 2012-13. (Dean Comp.

18 Letters.) At the time of her review, she had four publications, with five manuscripts
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Generally, a showing that an employer treated similarly situated employees outside the

20 plaintiff’s protected class more favorably is probative of pretext. Vasquez v. Cnty. of L.A., 349 F.3d 634,
641 (9th Cir. 2003), as amended (Jan. 2, 2004). The comparators must be similarly situated “in all
21 material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir.2006). In other words, individuals “are
similarly situated when they have similar jobs and display similar conduct.” Vasquez, 349 F.3d at 641.
motion, Defendants do not challenge Dr.
22 For the purposes of this are adequate comparators. (See generallyHargrave’s contention that the three
professors he identified
Plf. Mot.)

ORDER- 15

1 currently under review. (See Comparator CVs.) The Business School faculty, however,
2 voted nine in favor of tenure (with one abstaining), and the Dean recommended tenure.
3 (Dean Comp. Letter.) The Council and Chancellor, however, voted against granting
4 tenure due to concern over the paucity of her scholarly publications. (Cameron Decl. ¶ 8;
5 VC Comp. Letters.) Dr. B’s tenure decision, like Dr. Hargrave’s, was postponed for one
6 year. 7 (Id.)
7

Dr. A and Dr. B are approximately 10 years younger than Dr. Hargrave; Dr. C is 3

8 years older. (See Comparator CVs; Hargrave CV.)
For their part, Defendants contend that they are entitled to the “same-actor

9

10 inference” because Drs. Krishnamurthy, Balakrishnan, and Shankar were faculty at the
11 Business School when Dr. Hargrave was initially hired, as well as when he was
12 reappointed for a second three-year term. (Def. Mot. at 10.) “Where the same actor is
13 responsible for both the hiring and the firing of a discrimination plaintiff, and both
14 actions occur within a short period of time, a strong inference arises that there was no
15 discriminatory motive.” Schechner v. KPIX-TV, 686 F.3d 1018, 1026 (9th Cir. 2012)
16 (quoting Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir.1996).) The
17 same-actor inference is “a ‘strong inference’ that a court must take into account on a
18 summary judgment motion.” Id. (quoting Coghlan v. Am. Seafoods Co., 413 F.3d 1090,
19 1098 (9th Cir. 2005)). A case should go to the jury only if a “plaintiff can muster the
20 //
21
22

7

Dr. B has since resigned from the University. (Cameron Decl. ¶ 8.)

ORDER- 16

1 extraordinarily strong showing of discrimination necessary to defeat the same-actor
2 inference.” Coghlan, 413 F.3d at 1097.
3

The court finds that the same-actor inference is inapplicable here for the following

4 reasons: Drs. Krishnamurthy, Balakrishnan, and Shankar were not the only faculty
5 involved in the hiring, reappointment, and firing decisions; there is no indication how
6 Drs. Krishnamurthy, Balakrishnan, and Shankar voted during the hiring and
7 reappointment decisions; the positive and adverse employment decisions were separated
8 by at least three, and up to six, years, and the record shows that the faculty involved in
9 the two decisions likely changed over six intervening years. See Coburn v. PN II, Inc.,
10 372 F. App’x 796, 799 (9th Cir. 2010) (finding a district court erred in applying the
11 same-actor inference because multiple people were involved in both the positive and
12 adverse employment decisions and the decisions occurred two years apart). Therefore,
13 the court does not apply an inference in favor of Defendants when considering the motion
14 for summary judgment. See Coghlan, 413 F.3d at 1098.
15
16

a. Improper Evidence
Before turning to the parties’ substantive arguments regarding the comparators’

17 qualifications, the court addresses Defendants’ objections to certain of Dr. Hargrave’s
18 evidence. Specifically, Defendants object to Dr. Hargrave’s attempt to supplement the
19 record with accomplishments that occurred after the tenure decisions, as well as to Dr.
20 Hargrave’s reliance on information not before the faculty at the time of the tenure
21 decisions. (Def. Reply (Dkt. # 69) at 5.) Accordingly, the court clarifies the type of
22 evidence on which Dr. Hargrave may rely to show superior qualifications.
ORDER- 17

1

The purpose of considering evidence of candidates’ relative credentials is to

2 determine whether the employer’s decision is explainable only (or only in part) by
3 discrimination: the greater the disparity, the more likely the employer’s explanation is
4 pretext. Raad, 323 F.3d at 1197 (“[T]he fact that an employer hired a far less qualified
5 person than the plaintiff naturally gives rise to an inference that the non-discriminatory
6 explanation offered by the employer is pretextual.”); see also Shelley v. Geren, 666 F.3d
7 599, 617-18 (9th Cir. 2012) (Bybee, J., dissenting) (“[The standard] must be that a
8 reasonable jury could think that there is such a disparity in their qualifications that the
9 choosing of [the comparator] over [the plaintiff] is only explainable because of the
10 differences in their age.”). The question is not which candidate was more qualified in the
11 abstract, but rather whether the employer’s judgment was swayed by something other
12 than permissible criteria. Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980) (confirming
13 that courts do not sit as “Super-Tenure Review Committees”). Accordingly, information
14 unknown to (or unknowable by) an employer has no bearing on the question of the
15 employer’s motives for an employment decision.
16

For that reason, the court will not consider Dr. Hargrave’s evidence regarding the

17 articles he published subsequent to the tenure decision. (See Hargrave Decl. ¶¶ 4-6.)
18 Neither will the court consider evidence regarding the number of citations his previously
19 published articles have received since the tenure decision.8 (See Gautschi Decl. ¶¶ 4-6.)
20
21

8

The court will, however, consider the evidence Dr. Hargrave put forth in his dossier showing the
number of citations his articles has received up to the date of the tenure review process. (See 2d.
22 Krishnamurthy Decl. (Dkt. # 53) Exs. A, B; 2012 Statement.)

ORDER- 18

1 Finally, the court will not consider the testimony by Mr. Van de Ven, Dr. Hargrave’s
2 dissertation advisor, offering an opinion on Dr. Hargrave’s scholarly independence. (See
3 Van De Ven Decl. ¶¶ 5-7.) This information was not before the tenure review personnel
4 at the time of the tenure decision, and as such cannot be used to impugn their motives.
5 Moreover, Dr. Hargrave was well aware that it is the candidate’s responsibility to make
6 his best case for tenure in his dossier. (See Peterson Decl. Ex. E (“Cauce Dep.”) at 17:77 10; Hargrave Dep. at 209:3-9; Faculty Code § 24-54.) He may not use this suit as an
8 opportunity to rectify deficiencies in his original materials. Therefore, the court strikes
9 that evidence from the record.
10

Dr. Hargrave also relies on a website called Google Scholar to provide current

11 citation counts for his comparators’ articles. (Gautschi Decl. ¶ 3.) As explained above, a
12 factfinder may consider such information only to the extent it was before the tenure
13 review faculty.9 Dr. Hargrave puts forth evidence that the Business School faculty
14 discussed the “low citation rates” of Dr. A during their tenure meeting. (Last Gautschi
15 Decl. (Dkt. # 93) Ex. 5 (“Collins Dep.”) at 28:7-30:8.) There is, however, no indication
16 that the faculty were aware of the other comparators’ citation information at the time of
17 their decisions. (See id. (explaining that professors do “not routinely” take it upon
18
19

Defendants raise other evidentiary objections to Dr. Hargrave’s Google Scholar evidence.
(Reply at 2-3.) This evidence takes the form of a declaration by Dr. Hargrave’s attorney, Mr. Gautschi,
20 self-reporting the results he has observed on the Google Scholar website. (Gautschi Decl. at ¶¶ 3-6.) Dr.
Hargrave, however, admits he does not know how Google Scholar counts citations, what publications
21 Google Scholar considers, whether there is any quality assurance program, and why Google Scholar
citation counts differ from other citation indexes. (Hargrave Dep. 246:1-248:11.) Because the court does
22 not rely on the Google Scholar evidence for deciding this motion, the court does not address Defendants’
other evidentiary objections.
9

ORDER- 19

1 themselves to look up the citation rates of a candidate’s papers); Comparator CVs; 2d.
2 Peterson Decl. (Dkt. # 47) Ex. D (“Holland Dep.”) at 24:1-23 (testifying that not all
3 candidates provide citation information in their dossiers and that committee members do
4 not do independent research regarding citation information); Cameron Dep. at 37:5-12
5 (same); Balakrishnan Dep. at 46:25-47:18 (same); Gautschi Decl. Ex. 11 (“Shankar
6 Dep.”) at 14:7-25 (testifying that he is unaware of the citation count of his colleagues);
7 Hargrave Dep. at 243:8-11, 244:10-13 (conceding that the Business School has not
8 adopted citation counts as a standard to use in decision making).) Therefore, the court
9 strikes Dr. Hargrave’s comparator citation evidence as to Drs. B and C, and does not
10 consider it for purposes of this summary judgment motion. The court notes that, because
11 Dr. Hargrave propounds ample other evidence on the subject of citations, this evidentiary
12 ruling should work little prejudice to him. (See Levarty Decl. ¶ 8 (finding Dr. Hargrave’s
13 citations to be uncharacteristically numerous for a tenure candidate); 2011 Letter
14 (acknowledging that the Dr. Hargrave had amassed a volume of citations “unusual” for a
15 person at that point in his career); Collins Dep. at 13:1-14:21 (discussing how an external
16 reviewer’s comment that “very few researchers in [the field of organizational science]
17 can claim to have a paper with 165 citations at the time they go up for tenure” influenced
18 the P&T Committee).)
19

With respect to the final evidentiary issue, the court finds that Dr. Hargrave’s

20 evidence regarding the academic rankings of the journals in which he and the
21 comparators published articles is relevant. (See Gautschi Decl. Ex. 3 (“Rankings”)
22 (Thomson Reuters Jounal Citation Reports (2013) rankings).) This specific evidence
ORDER- 20

1 may not have been before the tenure decisionmakers. (See 2011 External Reviews; see
2 2d Krishnamurthy Decl. (Dkt. # 53) Ex. A (“2011 Dossier”), Ex. B (“2012 Dossier”), Ex.
3 C (“2011 Response”) (Hargrave’s 2011 response to the Business School faculty vote),
4 Ex. D (“2012 Response”) (Dr. Hargrave’s 2012 response to the Business School faculty
5 vote); Cauce Dep. at 26:15-27:10 (testifying that it is up to the candidate to make the case
6 for the quality of journals in which they have been published, and that some do identify
7 the top journals in their fields). However, the faculty have testified that individual
8 professors rely on their knowledge, experience, and judgment as scholars to determine
9 the quality of a particular publication or article. (Holland Dep. 50:14-21;Krishnamurthy
10 Dep. 34:3-16, 53:22-54:12; Sen Dep. 14:16-15:15; Balakrishnan Dep. 10:13-11:2, 65:611 66:13.) The court concurs that the Business School faculty can be expected to have a
12 general knowledge of the relative prestige of peer-reviewed business journals. Indeed,
13 the faculty expressed opinions as to the relative quality of Dr. Hargrave’s and his
14 comparators’ journals when making their tenure decisions. (See, e.g., 2011 P&T; 2011
15 Letter; 2012 Dean Rec.; Dean Comp. Letters at 9, 13.) Dr. Hargrave is entitled to
16 challenge their assessments of the quality of his publications.10 Therefore, the court will
17 consider Dr. Hargrave’s ranking evidence.
18
19

b. Dr. Hargrave’s qualifications
With that task aside, the court turns to the parties’ substantive arguments regarding

20 Dr. Hargrave’s qualifications. As the Ninth Circuit has emphasized, “academic tenure
21
10

In
the court does not rule
22 it is currentlyso holding,for summary judgment. on the admissibility of the evidence in the form in which
presented
See Fed. R. Civ. P. 56(c)(2).

ORDER- 21

1 decisions involve subjective judgments on scholarship that neither courts nor juries are
2 well qualified to make.” Elsayed Mukhtar v. Calif. State Univ., Hayward, 299 F.3d 1053,
3 1067 (9th Cir. 2002) amended sub nom. Mukhtar v. Calif. State Univ., Hayward, 319
4 F.3d 1073 (9th Cir. 2003) overruled on unrelated grounds by Estate of Barabin v.
5 AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014).11 For that reason, evidence regarding
6 academic qualifications, standing alone, is insufficient to prove pretext unless the
7 plaintiff was “clearly superior” to his comparators. Raad v. Fairbanks N. Star Borough
8 Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003) opinion amended on denial of reh’g, No.
9 00-35999, 2003 WL 21027351 (9th Cir. May 8, 2003); see also Ash v. Tyson Foods, Inc.,
10 546 U.S. 454, 458 (2006); Shelley, 666 F.3d at 610. However, a plaintiff need not show
11 she was “clearly superior” if, “considering the evidence as a whole, there are . . . other
12 bases upon which a trier of fact could infer pretext.” Raad, 323 F.3d at 1194; Gibson v.
13 King Cnty., 256 F. App’x 39, 41 (9th Cir. 2007).
14

The court reviews the parties’ evidence with that standard in mind. The parties

15 have submitted hundreds of pages of evidence and argument addressing the relative
16 qualifications of Dr. Hargrave and his comparators. (See generally Dkt.) What it boils
17
18
19
20
21
22

See also Okruhlik v. Univ. of Ark., 395 F.3d 872, 879 (8th Cir. 2005) (“We are mindful of the
singular nature of academic decision-making, and we lack the expertise to evaluate tenure decisions or to
pass on the merits of a candidate’s scholarship.”); Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225
(1985) (“When judges are asked to review the substance of a genuinely academic decision . . . they should
show great respect for the faculty’s professional judgment.”); Adams v. Trustees of the Univ. of N.C.Wilmington, 640 F.3d 550, 557 (4th Cir. 2011) (“Unsure how to evaluate the requirements for
appointment, reappointment and tenure, and reluctant to interfere with the subjective and scholarly
judgments which are involved, the courts have refused to impose their judgment as to whether the
aggrieved academician should have been awarded the desired appointment or promotion. Rather, the
courts review has been narrowly directed as to whether the appointment or promotion was denied because
of a discriminatory reason.”).
11

ORDER- 22

1 down to is this: Dr. Hargrave contends that the quality of the articles he had published
2 showed his “promise of attaining a national reputation” (see Tenure Guidelines) so
3 clearly that anyone who voted against him must have done so out of discrimination. (Plf.
4 Resp. at 13-16.) Dr. Hargrave focuses mainly on the significance of his AMR article.
5 (Id.) According to Dr. Hargrave, the Academy of Management Review ranks 1 out of 111
6 business journals and 1 out of 173 management journals. (Rankings.) Dr. Hargrave’s
7 AMR article had been cited 159 times by 2011, and 229 times by 2012. (2011 Dossier;
8 Gautshi Decl. Ex. 4 (“2012 Dossier”).) Dr. Laverty testifies that “[t[hat number is
9 remarkably large for a paper authored by an assistant professor five years into an
10 academic career.”) (Laverty Decl. ¶ 8.) Two external reviewers, who were selected from
11 Dr. Hargrave’s area of management expertise, praised the significance of the article.
12 (See, e.g., 2011 External Reviews. at 17 (“The 2006 AMR paper is simply outstanding
13 and has made a major impact on the field.”), 2012 Reviews at 61 (“Since his paper was
14 published, at least 5 papers in top journals have built upon his work.”).) Dr. Hargrave
15 argues that the other Business School faculty should have deferred to the “management”
16 scholars’ appreciation of his article. (See, e.g., Collins Dep. at 3:14-23 (“[W]e thought it
17 was a seminal piece.”), 17:6-19:7 (P&T Committee member stating that he deferred to
18 external reviewers’ assessments of the candidate’s research record because “they are
19 probably more familiar than anybody with the direction of a field and the caliber of
20 material that comes their way”).) Dr. Hargrave also claims that he is listed as lead author
21 on the AMR article. (See Van de Ven Decl. ¶ 6; but see Hargrave Dep. at 169:13-25
22 (describing the different naming conventions applied to scholarly articles).)
ORDER- 23

1

In a similar vein, Dr. Hargrave contends that his Business Quarterly article and

2 book chapters deserved more recognition from the faculty.12 (See Laverty Decl. ¶ 9
3 (stating that Business Ethics Quarterly is “the premier journal in business ethics” and that
4 the faculty should have deferred to P&T Committee’s outside member’s high view of the
5 article, because that member is one of the most cited business ethicists); Nye Decl. ¶ 8
6 (vouching for the quality of the Business Ethics Quarterly journal, as well as for the
7 publisher of the books for which Dr. Hargrave co-authored two chapters); Rankings
8 (showing that The Oxford University Press, in which Dr. Hargrave published a chapter
9 co-authored with his dissertation advisor in 2004, is the highest quality academic
10 publisher in the field of political science, and showing that Business Ethics Quarterly is
11 ranked 2 among 50 ethics journals and 16 among 111 business journals); 2011 External
12 Reviews (one reviewer praising the book chapters); 2012 External Reviews (same)).
13

Dr. Hargrave shows that, in contrast, his comparators articles were published in

14 arguably lower-ranking journals: according to Dr. Hargrave’s source, Dr. C’s highest
15 publications rank 5 and 6 out of 91 finance journals; Dr. B’s highest publication ranks 11
16 out of 111 business journals and 18 out of 173 management journals; and Dr. A’s highest
17 publication ranks 131 out of 333 economics journals. (Rankings.) According to Google
18
19

Dr. Hargrave also relies on the fact that he received “meritorious” ratings for teaching and
research on some of his annual performance reviews. (Gautschi Decl. Ex. 9 (“Perform. Reviews”)). That
20 fact cuts both ways. First, by 2011, Dr. Hargrave received a “non-meritorious” rating for research.
(Krishnamurthy Decl. ¶ 3.) Moreover, Drs. Balakrishnan. Shankar, and Krisnamurthy participated in his
21 previous positive reviews. (See Perform. Reviews.) Positive employment decisions, such as performance
reviews, made by the same actors who later made adverse employment decision against a plaintiff give
a weak
against
22 rise to1051-52inference 2009). bias on the part of those actors. See E.E.O.C. v. Boeing Co., 577 F.3d
1044,
(9th Cir.
12

ORDER- 24

1 Scholar, Dr. A’s papers had received a total of only 31 citations as of May 2015.
2 (Gautschi Decl. ¶ 4.) Nonetheless, Defendants supported the comparators’ candidacies.13
3 (See generally Dean Comp. Letters.)
4

In response, Defendants argue that although they duly weighed Dr. Hargrave’s

5 journal rankings and Google Scholar citations, those are but two factors to be considered,
6 and are therefore not dispositive of the tenure decision. (See Def. Reply; 2011 Letter
7 (“By objective citation measures and reputation, the Academy of Management Review is
8 the leading journal in management. . . . External reviewers noted that the volume of
9 citations for this paper was unusual for someone in [Dr. Hargrave’s] career.”)
10 Defendants identify other reasons that the faculty relied on to determine that Dr.
11 Hargrave’s qualifications were inferior to those of his comparators. (See 2011 Letter;
12 2012 Letter.) Specifically, Dr. Hargrave had a low scholarly output as of 2011: only two
13 articles in peer-reviewed journals, plus two book chapters, which the faculty found to be
14 less rigorous and prestigious than journal articles. (Hargrave CV; 2011 Dean Rec.; 2011
15 Letter.) The faculty was concerned about Dr. Hargrave’s apparent reliance on his
16 dissertation advisor: Dr. Hargrave’s best article had been co-authored with his advisor,
17 as had both of his book chapters (one of which dated back to 2004, before Dr. Hargrave
18 graduated and began working for the University). (2011 Chancellor Letter; 2012
19 Chancellor Letter.) Since then, Dr. Hargrave had authored only one article (which was
20
Tenure review at the Business School is not a zero-sum game: “During the promotion and
tenure review process . . . , candidates are not being compared to one another and they are not competing
21
against each other for a finite number of spots.” (Krishnamurthy Decl. ¶ 6.) Therefore, the relevant
22 question is whether Hargrave was clearly entitled to promotion along with—not instead of— his
comparators.
13

ORDER- 25

1 on the topic of business ethics rather than institutional theory) on his own. (See Hargrave
2 CV.) The faculty was also concerned about the downward trend in quality in Dr.
3 Hargrave’s articles: although the faculty gave Dr. Hargrave one year to publish his two
4 publications under review, only one was eventually published, and in a lower quality
5 journal than Dr. Hargrave’s other two articles. (2012 Letter; 2012 Dean Rec.) In 2012,
6 even faculty who Dr. Hargrave admits were not biased against him voted against granting
7 him tenure. (See Hargrave Dep. 169:9-12 (testifying that the Council did not
8 discriminate against him); 2012 Council Letter (“Despite early success with a high
9 impact publication, the record indicates that Dr. Hargrave has yet to establish a
10 substantial research program independent of his research advisor and commensurate with
11 the expectations of the [Business School].”).)
12

In contrast, the faculty recommended Dr. A because, during the tenure process, he

13 published two additional articles, including one in “one of the two most influential
14 journals in the field.” (See Cameron Decl. Ex. D (email telling the Provost about the
15 recent publications); Comparator CVs; Dean Comp. Letters.) The faculty recommended
16 Dr. C because he had over 15 years of teaching experience as a professor at other
17 institutions, including the University of Notre Dame; the Business School needed to fill a
18 vacancy in its accounting department; and two of his six articles had been published in
19 high ranking journals in the last five years. (VC Comp. Letters; Dean Comp. Letters;
20 Krishnamurthy Dep. at 109:20-111:11.) The faculty initially recommended Dr. B
21 because she was a “master teacher” and because the quality of her research trajectory was
22 improving. (Dean Comp. Letters (stating that “her research trajectory is noticeably
ORDER- 26

1 higher and that convinces me of her sustained contribution on the research front”);
2 Balakrishnan Dep. at 50:19-51:13 (stating that he supported Dr. B’s candidacy because
3 she persevered and achieved success with a publication in one high quality journal); Sen
4 Dep. at 11:18-12:17 (noting that Dr. B’s articles were improving in quality, and she
5 currently had five under submission).) The University, however, ultimately postponed
6 her tenure decision, for the same reasons that it postponed Dr. Hargrave’s: to give her a
7 year to obtain more publications. (VC Comp. Letters).
8

3. Sex and age discrimination claims

9

Viewing that evidence in the light most favorable to Dr. Hargrave, the court can

10 only conclude that “[a]lthough their relative suitability for the job is debatable, no
11 reasonable factfinder would find that [Dr. Hargrave’s] qualifications are ‘clearly
12 superior’ to those of [his comparators].” Peters v. Shamrock Foods Co., 262 F. App’x
13 30, 33 (9th Cir. 2007). Dr. Hargrave’s and his comparators’ credentials are similar to a
14 first approximation: for example, they all have doctorate degrees, and they all published
15 between four and six scholarly articles prior to their tenure decisions. For one of his four
16 articles, Dr. Hargrave identifies two metrics in his favor: the number of citations, and
17 quality of the journal. Defendants, however, identify a host of other reasons Dr.
18 Hargrave’s qualifications are not superior. Dr. Hargrave does not explain why his
19 selected metrics should trump the University’s considerations. (Particularly damaging to
20 Dr. Hargrave’s theory is the fact that faculty he admits were unbiased nonetheless voted
21 against granting him tenure.) See Hargrave Dep. at 169:9-12 (admitting that the Campus
22 Council did not discriminate against him), 33:23-25 (admitting that Dr. Miller did not
ORDER- 27

1 discriminate against him on the basis of race or national origin); (Cameron Dep. 59:242 60:19 (testifying that, when considering Dr. Hargrave’s tenure candidacy, she was
3 unaware of Dr. Hargrave’s race, national origin, or age); Stip. Dismissal (voluntarily
4 dismissing Dr. Miller and Ms. Cameron from the suit). The evidence simply does not
5 bear out Mr. Hagrave’s claim that his academic credentials were so superior that anyone
6 voting against him must have been discriminating. (Plf. Resp. at 4; Hargrave Dep. at
7 57:4-13.) To the contrary, the evidence admits of nothing more than a difference of
8 academic opinion: Defendants valued Mr. Hargrave’s accomplishments less than did
9 other Business School faculty.14 Elsayed Mukhtar, 299 F.3d at 1067 (finding that the
10 plaintiff’s “racial discrimination case [was] a disagreement among academic
11 professionals, which is something that Title VII does not proscribe”).
12

In short, this situation raises precisely the “subjective judgments on scholarship

13 that neither courts nor juries are well qualified to make.” Id.; Peters, 262 F. App’x at 33.
14 The court therefore finds that Dr. Hargrave’s evidence of his scholarly qualifications,
15 standing alone, is insufficient to show pretext on the part of the University. See Raad,
16 323 F.3d at 1194. Dr. Hargrave, however, has put forth no other evidence showing that
17 the University’s decision was a pretext for age or sex discrimination. (See generally Plf.
18 Resp.) Therefore, summary judgment on those claims is proper. See Mondero, 400 F.3d
19 at 1213.
20
Dr. Hargrave’s complaint that only the “management” faculty fully appreciated his AMR
article and work on institutional management theory is misguided: the University tenure system requires
21
every candidate to be judged by the professors superior to them in their department—not just the
professors in their area of specialty. (See Faculty Code § 24-52.)
14

22

ORDER- 28

Moreover, even if Dr. Hargrave’s qualifications evidence raised a question of fact

1

2 with respect to pretext, summary judgment on his sex discrimination claim would be
3 proper for two additional reasons. First, Dr. Hargrave’s evidence of a comparator whom
4 the University treated differently on the basis of sex is particularly weak. Although the
5 Business School faculty voted in favor of the only alleged female comparator, Dr. B, the
6 University ultimately postponed her tenure decision for a year due to doubts about her
7 scholarly output—just like Dr. Hargrave. (Cameron Decl. ¶ 8; VC Comp. Letters.)
8

Second, Dr. Hargrave failed to plead a sex discrimination claim against the

9 University in his complaint. (See Am. Compl.). Nor did Dr. Hargrave raise sex
10 discrimination in his EEOC complaint. (See EEOC Compl.); Freeman, 291 F.3d at 636
11 (holding that timely filing an EEOC complaint is necessary to exhaust remedies, a
12 prerequisite to bringing a Title VII claim). Dr. Hargrave is not permitted to raise claims
13 not asserted in his complaint. Grass v. Cnty. of L.A., 328 F.3d 1192, 1197 (9th Cir. 2003)
14 (upholding district court’s refusal to permit plaintiff to raise claims on summary
15 judgment when he had not asserted those claims in the earlier stages of litigation because
16 “[t]he decision whether to permit . . . a belated attempt to expand a complaint lies within
17 the discretion of the district court”).15
18 //
19
20

15

The deadline to amend pleadings was five months ago. (Sched. Ord. (Dkt. # 19).) Defendants
pointed out that Dr. Hargrave had not asserted a sex discrimination claim against the University over a
21 year ago, when they filed their motion to dismiss. (MTD (Dkt. # 14).) Dr. Hargrave has not shown
diligence or good cause for failing to amend his complaint. See Johnson v. Mammoth Recreations, Inc.,
Accordingly, the
22 975 F.2d 604,608-09 (9th Cir. 1992). one month before court will not permit him to raise a claim for sex
discrimination against the University
trial. (See Sched. Ord.)

ORDER- 29

1

For those reasons, also, Dr. Hargrave’s sex discrimination claim fails. In addition,

2 because aiding and abetting sex discrimination is the only claim that Dr. Hargrave has
3 raised against Dr. Sen (see Am. Compl. ¶ 91), the court dismisses Dr. Sen from the suit.
4 See Grass, 328 F.3d at 1197.
5

4. Race and national origin discrimination

6

With respect to his race and national origin discrimination claims, Dr. Hargrave

7 contends that evidence in addition to his qualifications shows that the University’s
8 reasons for denying him tenure were pretextual. (Plf. Resp. at 32.) Specifically, in one
9 paragraph of of his 40-page responsive brief, Dr. Hargrave contends that Indian faculty
10 show favoritism towards professors of Indian background. Dr. Hargrave contends that
11 their discrimination against his candidacy influenced the final tenure decision. (Id.); see
12 also Lam v. Univ. of Haw., 40 F.3d 1551, 1560 (9th Cir. 1994), as amended (Nov. 21,
13 1994), as amended (Dec. 14, 1994) (noting that bias by a single influential faculty
14 member at an initial stage can taint the outcome of the tenure process).
15

Dr. Hargave’s additional evidence is as follows: Drs. Nye and Laverty testify that,

16 during the faculty meetings, Drs. Sen, Balakrishnan, Krishnamurthy, and Shankar argued
17 vigorously against granting Dr. Hargrave tenure. (Nye Decl. ¶¶ 4-9; Levarty Decl. ¶¶ 1018 14.) Drs. Nye and Laverty testify that the faculty did not undertake a fair evaluation of
19 Dr. Hargrave’s record because “[f]rom the outset, the faculty discussion focused more on
20 building a case against tenure than on fairly and objectively evaluating Dr. Hargrave’s
21 record.” (Nye Decl. ¶ 10a; Laverty Decl. ¶¶ 10-14.) Drs. Nye and Laverty testify that,
22 during the meetings, Drs. Sen, Balakrishnan, Krishnamurthy, and Shankar ignored or
ORDER- 30

1 overlooked the requirements for tenure and promotion set forth in the Faculty Code and
2 Business School’s Tenure Guidelines, including, for example, refusing to discuss Dr.
3 Hargrave’s success in teaching and student development, or the significance of his book
4 chapters. (Nye Decl. ¶ 10b; Levarty Decl. ¶ 10-14.) Dr. Nye concludes: “This was the
5 most extreme breach of process in a tenure case that I have observed in twenty years at
6 the University of Washington.” (Nye Decl. ¶ 10.)
7

Dr. Hargrave also complains that Dean Krishnamurthy “sabotaged” his candidacy

8 because the Dean’s letters to the Vice Chancellor summarizing the faculty process were
9 inaccurate and unfairly emphasized the flaws in his candidacy rather than his strengths.
10 (Plf. Resp. at 4, 17-20.) The only potential inaccuracy Dr. Hargrave identifies, however,
11 is that the Dean stated the faculty found the quality of Dr. Hargrave’s Business Quarterly
12 article to be “good” rather than “high quality,” as was Dr. Laverty’s opinion, and found
13 Dr. Hargrave’s teaching to be “good” rather than “excellent,” as was Dr. Holland’s
14 opinion. (Id. at 17.) The court notes that, inasmuch as the remainder of the faculty
15 agreed that the referenced qualities were “good” rather than “high quality” or “excellent,”
16 the letter is not inaccurate.
17

The court finds that this additional evidence, viewed in the light most favorable to

18 Dr. Hargrave, is still insufficient to raise a genuine question of fact regarding pretext. A
19 “reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that
20 the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr.,
21 509 U.S. at 515. It is not enough that a factfinder could reasonably find that Drs. Sen,
22 Balakrishnan, Krishnamurthy, and Shankar opposed Dr. Hargrave’s tenure candidacy
ORDER- 31

1 vigorously, even to the point of breaching the ordinary tenure review process and
2 misapplying the Faculty Code. See Reeves, 530 U.S. at 150. Opposition, without more,
3 does not establish pretext; there must be some indication that the reason for the
4 opposition was discrimination.16 See St. Mary’s Honor Ctr., 509 U.S. at 515. Although
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

16

Dr. Hargrave seeks to offer evidence regarding certain hiring decisions by the Business School
that allegedly indicate a bias in favor of Indian professors. Specifically, Dr. Laverty recalls that Drs.
Krishnamurthy, Balakrishnan, and Sen championed the hiring of an Indian professor who Dr. Laverty felt
was not qualified, and who has since received negative student reviews. (Laverty Decl. ¶ 18.) Second,
Dr. Nye reveals that when Dean Krishnamurthy and Dr. Sen supported Dr. C as a lateral hire, they
promised that the faculty would have a chance to review his teaching skills before voting on tenure. (Nye
Decl. ¶ 14.) Contrary to that promise, Dr. C was excused from teaching during his first two quarters.
(Id.) Dr. Nye claims that process was “unprecedented.” (Id.) Since then, Dr. C has received some of the
“worst” student evaluations that Dr. Nye has “ever seen.” (Id.) Third, Dr. Laverty recalls that, shortly
after denying Dr. Hargrave tenure, Dr. Krishnamurthy recruited him to lobby for the immediate hiring of
another Indian professor, who had not even been interviewed. (Id. ¶ 19.) Fourth, Dr. Nye objects to the
hiring of Dr. Shankar without a national search to fill the position. (Nye Decl. ¶ 16).
The court, however, does not rely on the hiring evidence in reaching its summary judgment
decision. “A trial court can only consider admissible evidence in ruling on a motion for summary
judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P.
56(e)). Defendants’ currently pending motion in limine moves to exclude the hiring evidence under
Federal Rule of Evidence 403. (See MILs (Dkt. # 87).) In general, discrimination by an employer against
noncomparators can be admissible to show, among other things, intent to discriminate. See, e.g.,
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008); Lyons v. England, 307 F.3d 1092,
1110-11 (9th Cir. 2002). Such evidence, however, is subject to a “fact-intensive, context-specific”
inquiry under Rule 403 to determine whether its probity is outweighed by unfair prejudice, undue delay,
confusion, or wasting time. Sprint/United Mgmt. Co., 552 U.S. at 388. Accordingly, the Ninth Circuit
has upheld the exclusion of evidence regarding the treatment of other employees in situations dissimilar
to the plaintiff’s based on the evidence’s tendency to confuse the jury and waste trial time on ancillary
issues. See, e.g., Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 690 (9th Cir. 2001)
(excluding testimony regarding the treatment of other employees because it would result in a series of
“mini-trials” that distracted from the main issues); Freeman v. Astrue, 405 F. App’x 148, 151-52 (9th Cir.
2010) (same).
Here, the hiring evidence has a limited relevance to Dr. Hargrave’s claims of race and national
origin discrimination. The record shows that a decision to hire a professor for a three-year term is subject
to different criteria, scrutiny, and considerations than a decision to award life tenure. (See Faculty Code
§§ 25-51; 25-41; 24-54; Cauce Dep. at 22:21-23:4, 31:18-32:6; Kostrinkey Decl. (Dkt. # 70) ¶¶3-4.)
Moreover, the hiring decisions do not show discrimination against any professor on the basis of race or
national origin. Finally, for each hiring decision, Defendants are entitled to put forth evidence
concerning the Indian professor’s and other candidates’ qualifications, the role the professor was
recruited to fill, and the relevant University policies, to explain why the decision was unbiased. (See,
e.g., Kostrinkey Decl. ¶¶ 3-4 (explaining that the University waived national searches for the third and
fourth candidates pursuant to the “spousal hire” policy); Def. Reply at 10-12 (explaining that the first and
fourth candidates were confirmed by such a large majority of the faculty that Defendants’ votes were

ORDER- 32

1 Dr. Hargrave disagrees with their negative opinions of his scholarly merit, Title VII does
2 not proscribe such opinions. Dr. Hagrave’s evidence provides no indication that Drs.
3 Sen, Balakrishnan, Krishnamurthy, and Shankar were motivated by Dr. Hargrave’s race
4 or national origin. No factfinder could reasonably find otherwise. See Reeves, 530 U.S.
5 at 150. Accordingly, the court grants Defendants’ motion for summary judgment on the
6 racial and national origin discrimination claims.
7 C.

Aiding and abetting claims

8

Having resolved the claims against the University, the court now turns to the

9 claims against the individual defendants. The WLAD establishes liability for aiding,
10 abetting, encouraging, or inciting the commission of discrimination on the basis of race,
11 age, sex, or national origin. RCW 49.60.220. Dr. Hargrave is unable to establish an
12 underlying unfair practice that the individual defendants aided and abetted. Specifically,
13 Dr. Hargrave has only brought a claim for direct employment discrimination against the
14 University. (Am. Compl. ¶¶ 86-87.) As discussed above, however, Dr. Hargrave has
15 failed to put forth sufficient evidence to establish a genuine issue of material fact as to
16 whether the University’s denial of tenure constituted improper discrimination on the basis
17 of age, race, national origin, or sex. See supra § III.B. Without an underlying act of
18
19 inconsequential to the outcome); Krishnamurthy Dep. at121:1-22 (explaining that it is standard Business

School policy to offer new professors teaching reductions in their first year).) A trial would quickly
devolve into a series of “mini-trials” over each hiring decision, which would only serve to distract the jury
20 from the salient issue in the case (Dr. Hargrave’s tenure decision) and unnecessarily lengthen a trial
already subject to a voluminous record (see generally Dkt. (several hundreds of pages of exhibits filed in
21 support of the parties’ motions for summary judgment)). As such, the court concludes that the limited
probity of the hiring evidence is outweighed by its tendency to confuse the issues and cause undue delay.
Fed.
Because this evidence is subject to exclusion
22 See court R. Evid. 403; Tennison, 244 F.3d at 690.summary judgment motion. See Orr, 285 F.3dat trial,
the
declines to rely on it for purposes of the
at 773.

ORDER- 33

1 discrimination, there can be no claim for aiding and abetting discrimination. See RCW
2 49.60.220. Therefore, Dr. Hargrave’s claims that the individual defendants aided and
3 abetted the University in discriminating against Dr. Hargrave must fail.
4 D.

Contract claim

5

As a final matter, the court turns to Dr. Hargrave’s breach of contract claim. Dr.

6 Hargrave seizes on a single line from the Business School’s tenure guidelines as basis for
7 his breach of contract claim: “The candidate for tenure and promotion to the rank of
8 Associate Professor must show promise of attaining a national reputation.” (Tenure
9 Guidelines.) Dr. Hargrave maintains that this sentence forms a binding contract between
10 tenure candidates and the University; the University breached this contract by failing to
11 adequately consider Dr. Hargrave’s “promise of attaining a national reputation” when
12 considering his tenure applications; if the University had properly considered the matter,
13 it could only have correctly concluded that Dr. Hargrave had shown promise of attaining
14 a national reputation; and, consequently, the court should award Dr. Hargrave tenure
15 immediately. (See Plf. Mot.)
16

In support of his claim, Dr. Hargrave emphasizes that the written reports of the

17 Business School and other University faculty who considered his tenure applications did
18 not contain the phrase “promise of attaining a national reputation”; some of the
19 University faculty who considered his application did not explicitly testify that “promise
20 of attaining a national reputation” was a criteria they considered (instead, they referred to
21 the Faculty Code’s overarching standard); and the concept of “promise of obtaining a
22 national reputation,” as such, was not discussed at the Business School faculty meetings
ORDER- 34

1 concerning Dr. Hargrave’s tenure application. (Plf. Mot. at 1-20.)17 Dr. Hargrave also
2 puts forth evidence that some Business School professors believe he had in fact
3 demonstrated a “promise of obtaining a national reputation” as of his tenure reviw.
4 (Collins Dep. at 12:4-14:20; 3d Gaustchi Decl. Ex. 17 (“2012 P&T Rec.”); Holland Dep.
5 at 49:8-23; 51:9-21.)
6

As discussed below, Dr. Hargrave’s contract claim fails for at least two reasons.

7

1. Motion to strike

8

As an initial matter, Defendants move to strike the declaration of Lea Vaughn

9 (Dkt. # 68) filed in support of Dr. Hargrave’s reply to his motion for summary judgment.
10 (1st Surreply (Dkt. # 80).) Ms. Vaughn offers factual and legal opinions as to the
11 interplay between the Faculty Code and the guidelines of various academic departments
12 within the University. (See Dkt. # 68.) As Dr. Hargrave’s counsel conceded at oral
13 argument, Dr. Hargrave did not disclose Ms. Vaughn as either a lay or expert witness, or
14 provide an expert report, as required by Rule 26. (4th Peterson Decl. (Dkt. # 81); see
15 Fed. R. Civ. P. 26(a) (requiring initial disclosure of lay and expert witnesses, as well as a
16 written expert report), (e) (requiring supplementation). Federal Rule of Civil Procedure
17 37(c)(1) provides
18
19

If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure

20
17

(Citing 2011 Letter; 2011 Dean Rec.; 2012 Letter; 2012 Dean Rec.; Laverty Decl. ¶¶ 12-13;
Nye Decl. ¶¶ 7-8; 3d Gautschi Decl. (Dkt. # 43) Ex. 10 (“Lerum Dep.”) at 18:1-25 (testimony by Campus
21
Council member not mentioning that “promise of attaining a national reputation” was a Business School
22 requirement for tenure); Cameron Dep. at 37:1-45:11 (same); Cauce Dep. at 24:1-25:24; 2011 Council
Rec.; 2012 Council Rec.; 2011 Chancellor Letter; 2012 Chancellor Letter).)

ORDER- 35

1
2

was substantially justified or is harmless.

.

Fed. R. Civ. P. 37(c)(1); see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d

3 1101, 1106 (9th Cir. 2001) (“Rule 37(c)(1) gives teeth to these requirements by
4 forbidding the use at trial of any information required to be disclosed by Rule 26(a) that
5 is not properly disclosed.”). Dr. Hargrave offers no explanation as to why his failure to
6 disclose Ms. Vaughn’s testimony is substantially justified or harmless. Trial in this case
7 is looming one month away. (Dkt. # 19.) There is inadequate time for Defendants to
8 depose Ms. Vaughn or otherwise prepare to address her testimony. Accordingly, the
9 court strikes Ms. Vaughn’s declaration pursuant to Rule 37(c). See Fed. R. Civ. P. 37(c);
10 Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008), as
11 amended (Sept. 16, 2008) (upholding district court’s exclusion of previously undisclosed
12 evidence because Rule 37 is a “self-executing, automatic sanction to provide a strong
13 inducement for disclosure of material”).
14

2. Exhaust administrative remedies

15

Next, Dr. Hargrave’s contract claim is not properly before the court because Dr.

16 Hargrave fails to exhaust his administrative remedies. “The doctrine of exhaustion of
17 administrative remedies is well established in Washington.” Citizens for Mount Vernon
18 v. City of Mount Vernon, 947 P.2d 1208, 1211 (Wash. 1997). The rule provides that “in
19 general an agency action cannot be challenged on review until all rights of administrative
20 appeal have been exhausted.” S. Hollywood Hills Citizens Ass’n for Pres. of
21 Neighborhood Safety & Env’t v. King Cnty., 677 P.2d 114, 117 (Wash. 1984). The
22 University is a state agency subject to this rule. RCW 34.05.010(2), (7).
ORDER- 36

1

The exhaustion requirement applies “(1) when a claim is cognizable in the first

2 instance by an agency alone; (2) when the agency’s authority establishes clearly defined
3 machinery for the submission, evaluation and resolution of complaints by aggrieved
4 parties; and (3) when the relief sought can be obtained by resort to an exclusive or
5 adequate administrative remedy.” S. Hollywood Hills, 677 P.2d at 117-18 (internal
6 punctuation omitted). Dr. Hargrave does not dispute that the exhaustion requirement
7 applies to his contract claim against the University. (See Plf. Mot.; Plf. Reply (Dkt.
8 # 66).) The court agrees that the three elements are met. See S. Hollywood Hills, 677
9 P.2d at 117-18. First, the Faculty Code establishes a comprehensive procedure for
10 reviewing faculty decisions. (Faculty Code § 28.) That procedure includes review by a
11 Faculty Adjudication Panel Chair; a hearing before a Hearing Panel of five to seven
12 faculty members that takes evidence and renders a written decision on the challenge; and
13 the opportunity to appeal the Panel’s decision to the University President. (Id. § 28-61.)
14 Second, the Faculty Code requires that parties challenging faculty decisions “shall avail
15 themselves of these proceedings prior to seeking review beyond the University.” (Id.)
16 Third, the Hearing Panel found that it could “clearly” award Dr. Hargrave’s alternative
17 request for relief in the form of another tenure review. (Chair Letter at 2; Petition); see
18 Dioxin/Organochlorine Ctr. v. Dep’t of Ecology, 837 P.2d 1007, 1016 (Wash. 1992)
19 (finding that the ability to obtain partial relief was sufficient to require exhaustion of
20 administrative remedies). Therefore, the exhaustion requirement applies.
21

It is undisputed that Dr. Hargrave voluntarily withdrew from the University

22 appeals process after he received unfavorable preliminary discovery rulings.
ORDER- 37

1 (Withdrawal Letter.) Dr. Hargrave contends that he was not required to finish exhausting
2 his appeal because those rulings rendered his appeal futile. (Plf. Reply.) Dr. Hargrave is
3 correct that “[t]here are exceptions to the exhaustion doctrine based upon considerations
4 of fairness or practicality.” Baldwin v. Sisters of Providence in Wash., Inc., 769 P.2d
5 298, 300 (Wash. 1989). “One such exception is recognized where pursuing the available
6 remedies would be futile.” Id. “The futility exception to the exhaustion doctrine is
7 premised upon the rationale that courts will not require vain and useless acts.” Orion
8 Corp. v. State, 693 P.2d 1369, 1379 (Wash. 1985). “If the available administrative
9 remedies are inadequate, or if they are vain and useless, they need not be pursued before
10 judicial relief is sought.” Id. “Generally, futility addresses a showing of bias or prejudice
11 on the part of discretionary decisionmakers.” Baldwin, 769 P.2d at 300; see also
12 Dioxin/Organochlorine, 837 P.2d at 1016 (noting that an administrative process is futile
13 when a legislative or agency policy predetermines the result of the plaintiff’s
14 administrative claim).
15

Contrary to Dr. Hagrave’s assertion, however, the appropriate inquiry is not

16 whether a plaintiff believes he is likely to prevail on his administrative claim. See
17 Lechelt v. City of Seattle, 650 P.2d 240, 242 (Wash. 1982) (“Even remedies thought to
18 be unavailing must be pursued.”). Rather, the inquiry is whether fairness or practicality
19 to a plaintiff outweighs the policies underlying the exhaustion requirement. See S.
20 Hollywood Hills Citizens, 677 P.2d at 117. The policies underlying the exhaustion
21 requirement are: to “(1) insure against premature interruption of the administrative
22 process; (2) allow the agency to develop the necessary factual background on which to
ORDER- 38

1 base a decision; (3) allow exercise of agency expertise in its area; (4) provide for a more
2 efficient process; and (5) protect the administrative agency’s autonomy by allowing it to
3 correct its own errors and insuring that individuals were not encouraged to ignore its
4 procedures by resorting to the courts.” Citizens for Mount Vernon, 947 P.2d at 1211
5 (quoting McKart v. United States, 395 U.S. 185 (1969).) “Whether administrative
6 remedies are futile is a question for the court.” Beard v. King Cnty., 889 P.2d 501, 506
7 (Wash. Ct. App. 1995).
Dr. Hargrave puts forth three reasons he believes that continuing the University’s

8

9 appeal process would have been futile: the Hearing Panel (1) deferred ruling on whether
10 it had the authority to grant Dr. Hagrave tenure outright; (2) did not style his appeal as a
11 breach of contract claim; and (3) limited the depositions he could take. (See Plf. Reply.)
12 The court finds that none of these reasons rendered the proceedings futile. See Orion
13 Corp., 693 P.2d at 1379.
14

First, the Panel never ruled against Dr. Hargrave on the issue of whether it could

15 award tenure as a remedy in Dr. Hargrave’s situation. (Plf. Reply; Withdrawal Letter.)
16 Rather, the Chair confirmed that, “the faculty code does not preclude a hearing panel
17 from ordering promotion or tenure as relief in an appropriate case—that is, where it can
18 do so without reconsidering the case for tenure on the merits.” (Chair Letter.) The Panel
19 then declined to decide whether it could award tenure in Dr. Hargrave’s case prior to the
20 hearing in the case because such a ruling would be “entirely speculative at this time and,
21 hence, premature.” (2d Gautschi Decl. Ex. 6 (“2d Pre-Hearing Order”).)
22 //
ORDER- 39

1

Dr. Hargrave fails to explain how leaving open the possibility that he could be

2 awarded tenure at the conclusion of his administrative claim rendered the process “vain
3 and useless.” Orion Corp., 693 P.2d at 1379. After all, even if the Hearing Panel
4 ultimately concluded it could not award tenure outright, it was already established that
5 the Panel could award Dr. Hargrave’s alternative requested relief: another tenure review
6 that comported with the Faculty Code. (Chair Letter); Dioxin/Organochlorine, 837 P.2d
7 at 1016. That second review could very well have led to an award of tenure.
8

More important, even if resolution of administrative process did not provide Dr.

9 Hargrave his optimal solution, it would have served the policies underlying the
10 exhaustion requirement, namely, to “allow exercise of agency expertise in its area;” and
11 to “protect the administrative agency’s autonomy by allowing it to correct its own
12 errors.” Citizens for Mount Vernon, 947 P.2d at 1211. The requirement to exhaust
13 administrative remedies “is founded upon the belief that the judiciary should give proper
14 deference to that body possessing expertise in areas outside the conventional expertise of
15 judges.” Citizens for Mount Vernon, 947 P.2d at 1211. That principle is especially
16 significant where, as here, the court is asked to review “academic tenure decisions [that]
17 involve subjective judgments on scholarship that neither courts nor juries are well
18 qualified to make.” Elsayed Mukhtar, 299 F.3d at 1067. The Hearing Panel was better
19 qualified to determine whether the University faculty botched Dr. Hargrave’s review
20 process, or based their decision on impermissible, non-academic factors. Moreover, the
21 Hearing Panel had the authority to rectify any impropriety it found. Therefore, the
22 Panel’s deferral of the question of the potential remedies is not a basis for futility.
ORDER- 40

1

Second, Dr. Hargrave complains that the Panel did not rule on whether his appeal

2 was a “breach of contract claim” against the University, as he asserted, or an action for a
3 breach of the Faculty Code, as the University asserted. (Plf. Reply at 10; Withdrawal
4 Letter; see also 2d Gautshi Decl. Ex. 5 (“1st Pre-Hearing Order”) (inviting the parties to
5 provide their proposed formulation of the issues to the Hearing Panel); 2d Pre-Hearing
6 Order (identifying a statement of issues without adopting one or the other parties’
7 positions).) Dr. Hargrave fails to establish why the distinction makes any difference.
8 The Hearing Panel determined that one of the issues to be determined was, “Did any
9 authorized University official, through action or inaction, violate University regulations
10 affecting the terms, conditions, or course of employment of [Dr. Hargrave]?” (2d Pre11 Hearing Order.”) As such, regardless of what nominal title the Hearing Panel applied to
12 Dr. Hargrave’s appeal, the Hearing Panel was poised to decide the substance of Dr.
13 Hargrave’s “breach of contract” claim: whether the Faculty Code had been violated.
14 (See id.) Such a decision would have advanced at least the policies of allowing the
15 exercise of University expertise in its area, providing for a more efficient process, and
16 protecting the University’s autonomy by allowing it to correct its own errors. See
17 Citizens for Mount Vernon, 947 P.2d at 1211. Therefore, the disagreement over the
18 nominal title of Dr. Hargrave’s administrative claim is not a basis for excusing the
19 requirement to exhaust remedies.
20

Third, Dr. Hargrave complains about certain discovery orders made by the

21 Hearing Panel. Specifically, Dr. Hargrave finds unfairness in the fact that the Panel
22 declined to permit him to depose or obtain the hiring notes of faculty not named as
ORDER- 41

1 respondents in the administrative action. (Plf. Reply at 10-11; Withdrawal Letter.)
2 However, in its preliminary ruling denying permission to depose certain faculty, the
3 Panel explicitly invited Dr. Hargrave to explain why he sought to take those depositions.
4 (See 2d Pre-Hearing Order (“[E]ven if it is assumed that the professors Balakrishnan and
5 Sen opposed Professor Hargrave’s candidacy, it is not clear why it is necessary or even
6 useful to take their depositions given that they are not respondents whose actions are
7 being challenged. If [Dr. Hargrave] continues to seek to take these . . . depositions, he
8 should provide written statements in support of the request within seven days of this
9 Order.”).) Dr. Hargrave failed provide a statement in support of his request. (2d.
10 Cameron Decl. (Dkt. # 86) Ex. A (“Discovery Ruling”) (“Petitioner did not provide such
11 a statement and has offered no additional reasons supporting the taking of depositions of
12 Professor P.V. Balakrishnan and Professor Pradyot Sen.”). Dr. Hargrave may not now
13 criticize the Hearing Panel’s ruling on an issue that he refused to contest.
14

Additionally, the Panel is vested with statutory discretion to determine the

15 appropriate discovery procedures applicable to an administrative proceeding. RCW
16 34.05.446. The Panel permitted Dr. Hargrave to take the deposition of Dean
17 Krishnamurthy and to engage in documentary discovery; Dr. Hargrave also received
18 University records related to his tenure review process. (See Discovery Ruling; 2d Pre19 Hearing Order (requiring the University to supply notes from the Business School faculty
20 meetings).) There is no indication that the discovery process overall was unfair or
21 otherwise hindered Dr. Hargrave’s presentation of his administrative claim. A plaintiff’s
22 subjective belief regarding the unfairness of the administrative procedure is insufficient
ORDER- 42

1 to establish futility. See Baldwin, 769 P.2d at 301 (1989); Buechler v. Wenatchee Valley
2 Coll., 298 P.3d 110, 117 (Wash. Ct. App. 2013; Beard, 889 P.2d at 506 (requiring
3 plaintiffs to apply for a promotion even though employer verbally told them that he
4 would not consider them for promotion because plaintiffs “cannot ask the court to
5 remedy a denial of promotions for which they never applied based on speculation that
6 seeking promotion was futile”). Therefore, the discovery rulings did not render the
7 administrative appeal proceedings futile.
8

In sum, “[f]utility that will excuse exhaustion arises only in rare factual

9 situations.” Buechler, 298 P.3d at 117. Dr. Hargrave’s is not such a situation. Because it
10 is undisputed that Dr. Hargrave failed to complete his administrative appeal with the
11 University, the breach of contract claim is not properly before the court. See Beard, 889
12 P.2d at 506. Accordingly, summary judgment on the breach of contract claim is
13 appropriate.
14

3. Merits of the contract claim

15

Finally, summary judgment would be appropriate even if Dr. Hargrave were not

16 required to exhaust administrative remedies prior to bringing a contract claim before this
17 court. The parties dispute the legal effect of the Business School’s tenure guidelines. Dr.
18 Hargrave contends that the guidelines contractually obligate the University to evaluate
19 his tenure application for a “promise of obtaining a national reputation” and to award him
20 tenure if he shows such promise. (See Plf. Mot. at 21 (citing Storti v. Univ. of
21 Washington, 330 P.3d 159, 163 (Wash. 2014); Tenure Guidelines.) The University
22 contends that the Business School’s tenure criteria merely provide examples of how
ORDER- 43

1 Business School candidates can show they have met the Faculty Code’s requirements for
2 tenure and promotion, namely, “a record of substantial success in both teaching and
3 research.” (Def. Resp.; Def. Surreply (Dkt. # 85).) The court finds it unnecessary to
4 decide the issue of whether the guidelines constitute a unilateral contract between Dr.
5 Hargrave and the University because, even if they did, Dr. Hagrave’s breach of contract
6 claim would fail.
7

First, the plain language of the tenure guidelines does not guarantee that a

8 candidate who shows a promise of obtaining a national reputation will be awarded tenure.
9 Rather, the guidelines require that “[t]he candidate for tenure and promotion to the rank
10 of Associate Professor must show promise of attaining a national reputation.” (Tenure
11 Guidelines.) The guidelines go on to list additional requirements: “there must be a base
12 of publications in high-quality refereed journals”; “[t]here must be evidence of effective
13 teaching in the various courses the candidate teaches regularly”; and “[h]ow well one
14 performs in service assignments is an important criterion.” (Id.) As such, a promise of
15 attaining a national reputation is a necessary, but not sufficient, condition for promotion
16 and tenure.
17

Second, the record admits of only one conclusion: the University considered the

18 criteria set forth in the Business School guidelines and Faculty Code. The tenure
19 guidelines explain the factors that indicate a promise of attaining a national reputation:
20
21
22

“Letters from external reviewers are extremely important, as is the
reputation of the reviewers. Any other evidence to indicate the quality of
the research, such as the quality of journals in which publications appear,
citations, awards, etc., is also valuable. A number of different types of
scholarly contributions are valued (grants, book chapters, presentations,
ORDER- 44

1

etc.), but there must be a base of publications in high-quality refereed
journals.”

2
(Tenure Guidelines.) In his briefing, Dr. Hargrave contends that a similar list “objective
3
measures” demonstrate whether a candidate has shown promise of attaining a national
4
reputation, including, the quality and reputation of journals in which the candidate’s
5
papers appear; assessments by external reviewers; the candidate’s service as a referee at
6
quality journals; the candidate’s presentations at seminars, workshops, and professional
7
conferences; and citations to the candidate’s publications. (Plf. Mot. at 14 (quoting
8
Cauce Dep. at 37:1-45:11, 19 (citing Jeffords Dep. at 19:24-20:11, 24:1-25, 28:12-21,
9
31:6-19).)
10
The faculty’s written memoranda, as well as their subsequent testimony,
11
establishes that when evaluating Dr. Hargrave’s candidacy, they considered all of the
12
scholarly factors that Dr. Hargrave now contends establish his promise of attaining a
13
national reputation. (See Cauce Dep. at 24:1-25:24; Cameron Dep. at 37:1-45:11;
14
Jeffords Dep. at 19:24-20:11, 24:1-25, 28:12-21, 31:6-19; Krishnamurthy Dep. at 185:1215
187:2 (discussing Dr. Hargrave’s ability to establish a reputation independent from that
16
of his dissertation advisor); Sen Dep. at 68:20-25; 2011 Dean Rec.; 2012 Dean Rec.;
17
2011 Council Rec.; 2012 Council Rec.; 2011 Chancellor Letter; 2012 Chancellor Letter;
18
2012 P&T Rec.) Moreover, the topic of national reputation was specifically raised and
19
addressed at multiple points during the review. The requirement for “promise of
20
attaining a national reputation” was mentioned in the request letters sent external
21
reviewers. (See 2d Gautschi Decl. Ex. 4 (template request letter).) Many of the external
22
ORDER- 45

1 reviewers addressed the subject in their reviews (see 2011 Reviews; 2012 Reviews). The
2 P&T Committee’s 2012-13 recommendation expressly found that Dr. Hargrave had
3 established a promise of attaining a national reputation. (2012 P&T Rec.). Moreover,
4 Dr. Hargrave himself raised the issue of national reputation in his responses to the faculty
5 votes. (2d. Krishnamurth Decl. Ex. C (“2011 Statement”) (describing the ways in which
6 he had already attained a national reputation); Ex. D (“2012 Statement”) (same).) Dean
7 Krishnamurthy’s 2012-13 recommendation explicitly rebutted Dr. Hargrave’s contention
8 that the faculty had not applied the standard of “promise of attaining a national
9 reputation.” (2012 Dean Rec.) Those materials discussing the national reputation
10 standard were provided to every subsequent level of review, and hence were before the
11 Campus Council, Chancellor, Vice Chancellor, Vice Provost, and Provost when they
12 made their tenure decisions. (See Cauce Dep. at 31:6-32:6; Jeffors Dep. at 12:1-13:6;
13 Krishnamurthy Dep. at 171:22-24; 2d. Krishnamurthy Decl. ¶ 3.)
Dr. Hargrave’s claim rests on the facts that the phrase “promise of attaining a

14

15 national reputation” does not appear in every single one of tenure review materials, and
16 that faculty members did not utter the phrase during the faculty meetings. (See Plf. Mot.
17 at 1-20.) As the preceding litany of citations shows, to the extent there was an obligation
18 to consider Dr. Hargrave’s “promise of attaining a national reputation,” the faculty
19 //
20 //
21 //
22 //
ORDER- 46

1 substantively fulfilled that requirement. The absence of certain magic words from some
2 records of his tenure decision does not negate that conclusion.18
3

Last, Dr. Hargrave’s contention that the University was prohibited from

4 considering the likely trajectory of his career is not well-taken. Dr. Hargrave argues that
5 determining a “‘record of substantial success’ required an assessment of what he had
6 done in his academic career as of the reviews, not what he might do in the future.” (Plf.
7 Mot. at 24.) This contention is particularly misguided given Dr. Hargrave’s insistence
8 that he should have been awarded tenure based on his “promise of attaining a national
9 reputation”—a criterion that is necessarily forward looking. (See Plf. Mot. at 1-20.)
10

The Faculty Code mandates review of “the whole record of candidates,” and

11 consideration of “the way in which the candidate will fit into the present and foreseeable
12 future of the academic unit.” (2d Peterson Decl. Ex. E (“Exec. Order 45”) (incorporated
13 into chapter 25 of the Faculty Code).) In fact, Dr. Hargrave himself included evidence of
14 papers under review and works in progress in his dossiers. (2d. Krishnamurthy Decl.
15 Exs. A (“2011 Dossier”), Ex. B (“2012 Dossier”).) The external reviewers and Campus
16 Council both relied on his evidence of future work to recommend awarding him tenure.
17 (See 2011 External Reviews; 2011 Council Rec.). Dr. Hargrave cannot take issue with
18 the consideration of factors not only sanctioned by the Faculty Code, but on which he
19 affirmatively submitted evidence in his favor. Upon closer inspection, it is evident that
20
21

The court notes that Dr. Hargrave’s own statement provided with his 2011-12 dossier did not
use the phrase “promise of attaining a national reputation,” and his 2012-13 statement used it only once.
22 (See 3d Gautschi Decl. Ex. 18; 2d Krishnamurthy Decl. Ex. 1.)
18

ORDER- 47

1 Dr. Hargrave is less concerned with what material the faculty considered than what
2 conclusion they drew from that material: namely, that he had not demonstrated the
3 pipeline of research necessary to merit promotion and tenure. This line of argument is
4 just one more way in which Dr. Hargrave seeks to have the court review the merits of his
5 tenure decision under the guise of adjudicating a legal claim. Such review is beyond this
6 court’s province. Therefore, for this and all the reasons previously discussed, summary
7 judgment is appropriate on Dr. Hargrave’s breach of contract claim.
8
9

IV.

CONCLUSION

For the foregoing reasons, the court GRANTS Defendants’ motion for summary

10 judgment (Dkt. # 33) and DENIES Plaintiff’s motion for summary judgment (Dkt. # 42).
11

Dated this 1st day of July, 2015.

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14

A

15

JAMES L. ROBART
United States District Judge

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ORDER- 48