(D.C. No. 1:10-CV-03163-RPM) (D. Colo.)
Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
ORDER AND JUDGMENT [*]
Bobby R. Baldock Circuit Judge
Elizabeth Frederick appeals from the district court's grant of summary judgment in favor of Metropolitan State University of Denver Board of Trustees (Metro) on her claim that she was denied a promotion on the basis of her gender in violation of 42 U.S.C. § 2000e, et seq., commonly known as Title VII of the Civil Rights Act of 1964. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
A. The Promotion Process
Elizabeth Frederick, Ph.D., is a tenured associate professor at Metro. She works in the Management Department, which in turn is part of the School of Business. There are three tenure or tenure-track ranks for professors at Metro: assistant professor, associate professor, and professor. The promotion process is governed by the Handbook for Professional Personnel (the Handbook). Associate professors are eligible for promotion to professor after four years of service. Metro hired Dr. Frederick in 1987 as a tenure-track assistant professor. She was granted tenure and promoted to associate professor in 1992.
Although she was eligible to apply for promotion to professor in 1996, Dr. Frederick waited for ten years – until 2006 – to first apply. According to Dr. Frederick she "had other things [she] was busy with, " Aplt. App. at 570, and "[g]etting promoted wasn't that important, " id. at 621. She decided to pursue the promotion in 2006 following a stint as the Department Chair,  which convinced her that she did not have a future in administration and inspired her "to become the best teacher/researcher [she] could be." Id. at 570. "[T]he other main reason . . . [was] because it made a difference finally in terms of salary." Id.
A faculty member who seeks promotion is required to submit a comprehensive dossier with information sufficient to permit an evaluation of his or her performance. "The four performance areas for evaluating faculty for . . . promotion . . . are teaching, advising, professional development, and service." Id. at 81. Among other things, the dossier must include: "[a] current academic vita . . . [;] [e]vidence of contribution to teaching and advising; evidence of professional development accomplishments and service contributions[;] [and] [a]ll student evaluation and peer observation results." Id. at 78-79.
The dossier moves through seven levels of review: (1) the faculty member's Department Committee, which consists of tenured faculty in the given Department, except the Department Chair and any faculty members who serve on the School Committee or Faculty Senate; (2) the Department Chair; (3) the School Committee, which represents the range of disciplines and is comprised one half each of members elected by the faculty and appointed by the Dean; (4) the School Dean; (5) the Faculty Senate Committee, which is comprised of tenured faculty and established by senate bylaws; (6) the Provost/Vice President of Academic Affairs; and (7) the President. Each level considers the dossier and makes a recommendation for or against promotion. The Handbook does not explicitly require written comments, however, it is common practice to provide an explanation for the recommendation. The ultimate decision regarding promotion rests with the President.
John P. Cochran, Ph.D., became the interim Dean of the School of Business in 2004. He was permanently hired in 2006 and served in this capacity until his retirement in 2011. When Dr. Cochran became Dean, "five of the six [business] departments had guidelines that [he] thought required accurate rigor and strategic goals for the School of Business." Id. at 151-52. But in his "view, the guidelines for the Management Department were low." Id. 152. Of particular concern to Dean Cochran was the fact that the School of Business was actively pursuing accreditation by the Association to Advance Collegiate Schools of Business (AACSB), and the "high standards" to obtain accreditation meant that "every department in the School of Business had to place a high priority in the development of a consistent stream of intellectual contributions that result in peer-reviewed full paper presentations with refereed journal articles, book chapters, and/or scholarly books or textbooks most highly valued." Id. As one professor in the Management Department explained, "[w]hen the School of Business voted to seek AACSB accreditation, we knew the guidelines for each department would be revised to reflect the heightened standards required for accreditation, particularly in the area of scholarly activity." Id. at 1320. The changes, however, were neither "drastic, nor did they come as a surprise." Id. at 1321.
B. Dr. Frederick's First Application
Although Metro's denial of Dr. Frederick's 2007 application forms the basis of her claim, her first application in 2006 sets the stage. In addition to her dossier and curriculum vitae, Dr. Frederick submitted the Management Department Guidelines that were in effect in 2004 and 2005, despite the fact that the Guidelines had changed by the time that her materials were submitted in 2006.
The first two levels of review (the Department Committee and Department Chair) recommended promotion. However, the remaining five levels of review did not. At level three, the School Committee observed that the lack of professional development (the gap in publishing from 1984 to 2006) outweighed the positive. At level four, Dean Cochran wrote: "I must concur with the school committee 6-0 vote against promotion . . . for the reason stated, the 'body of work over her career is lacking a performance level commensurate with the rank of professor.'" Id. at 149. At level five, the Faculty Senate Committee also did not recommend the promotion. In particular, the Committee was aware "that the School of Business was seeking accreditation and the department's guidelines reflected the requirements for professional development. Although Dr. Frederick was Department Chair during a ...