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Singh v. Shonrock

United States District Court, D. Kansas

October 12, 2017

Rajesh Singh, Ph.D., Plaintiff,
v.
Michael D. Shonrock, Ph.D.; David P. Cordle, Ph.D.; Gwen Alexander, Ph.D.; Andrew J.M. Smith, Ph.D.; and Emporia State University, Defendants.

          MEMORANDUM & ORDER

          John W. Lungstrum, United States District Judge.

         Plaintiff Rajesh Singh, Ph.D., was employed as an assistant professor at Emporia State University on a series of one-year probationary “term” appointments. After plaintiff served five years of a six-year probationary period, the University decided not to renew plaintiff's probationary appointment and offered plaintiff a one-year “terminal” appointment. Plaintiff accepted that offer and his employment terminated at the end of that contract term. He filed this lawsuit alleging that Emporia State University failed to renew his appointment on the basis of his race, color and/or national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Kansas Act Against Discrimination, K.S.A. § 44-1001 et seq.; and that the individual defendants violated his Fourteenth Amendment rights to equal protection and due process and retaliated against him for exercising his First Amendment free-speech rights. This matter is presently before the court on defendants' motion for summary judgment on all claims (doc. 110). As will be explained, the motion is denied as to plaintiff's First Amendment retaliation claim against defendant Cordle and is otherwise granted.[1]

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. The process for promotion and tenure at defendant Emporia State University (“ESU”) is governed by policies of the Kansas Board of Regents and ESU. The Board of Regents policy provides that, subject to termination for cause or other circumstances, teachers and instructors should have permanent or continuous tenure after the expiration of a probationary period. ESU policy requires that all faculty serve a probationary period of six years of full-time employment preceding the granting of tenure. This probationary period consists of annual “term” appointments for an academic year. ESU policy allows the University “at its discretion” to “decide not to renew an academic probationary appointment.”

         The annual reappointment process begins at the department level. Pursuant to ESU policy, each department establishes a Faculty Promotion Committee (FPC) charged with making “advisory” recommendations concerning reappointment to the department chair and, ultimately, the Dean of the department. The Dean of the department then reviews those recommendations and forwards those recommendations, along with his or her own recommendation, to the Office of the Provost. The Provost then reviews the recommendations, along with any materials Case 2:15-cv-09369-JWL Document 128 Filed 10/12/17 Page 3 of 38 submitted by the faculty member, and makes his or her own recommendation. Those recommendations and materials are then forwarded to the Office of the President. The president makes the final decision concerning reappointment and promotion.

         Any faculty member who is dissatisfied with any employment-related matters, including issues relating to reappointment, may utilize the University's grievance procedure. To initiate that process, the faculty member contacts the Faculty Affairs Committee (FAC), who provides the faculty member with the names of current ombudspersons for the purpose of attempting to resolve the problem prior to the filing of a formal grievance. The faculty member chooses one or more ombudspersons to assist them in the process. The ombudsperson(s) then meets with the grievant and the responding parties in an effort to conciliate the dispute. Once the ombudsperson notifies the FAC as to whether conciliation efforts were successful, the grievant may choose to file a formal petition by submitting that petition to the FAC. A five-person grievance committee is then selected through input from the grievant, the responding parties and the FAC. University policy permits the grievance committee to resolve the grievance on written submissions or after a grievance hearing. The decision of the grievance committee is then submitted to the University president, who is “expected” to give “significant consideration” to the recommendations of the grievance committee in rendering a final decision.

         The School of Library and Information Management (“SLIM”) is a department at ESU. In July 2009, plaintiff Rajesh Singh accepted his first probationary appointment as an Assistant Professor within SLIM. Plaintiff was born in India; his race is Asian; and his skin color is brown. The appointment, considered a “Fiscal Year 2010” appointment, ran from August 2009 through May 2010 with a salary of $55, 000 and no credit towards tenure. In June 2010, plaintiff accepted a probationary appointment for Fiscal Year 2011 with a salary of $55, 500 and one year of credit towards tenure. At the same time, defendant Andrew Smith was offered and accepted his first probationary appointment as an Assistant Professor within SLIM at a salary of $58, 000 and two years of credit towards tenure. Like defendant Smith, another new faculty member, Sheila O'Hare, was given a probationary appointment for Fiscal Year 2011 at a salary of $58, 000. Defendant Smith and Ms. O'Hare are Caucasian.

         In late June 2010, plaintiff sent an email to defendant Gwen Alexander, Ph.D., the dean of the SLIM department. Defendant Alexander is Caucasian. In that email, plaintiff complained that new faculty “with fewer qualifications and far fewer accomplishments” had been hired at a higher salary and with credit towards tenure. Plaintiff requested that his salary be increased and that he receive credit towards tenure in light of his academic and scholarly accomplishments. Defendant Alexander met with plaintiff about his complaints and explained the reason for the salary differential and ESU's policy regarding credit towards tenure.

         The record reflects that plaintiff's relationship with defendant Alexander was, at best, strained. The record is unclear whether the relationship deteriorated as a direct result of plaintiff's complaint about faculty pay and tenure credit. Plaintiff's evidence suggests that defendant Alexander believed that plaintiff was biased against “white people, ” was misogynistic, and harbored a bias against older faculty members. According to plaintiff, defendant Alexander held these beliefs based on an express or implicit bias against people of color. Plaintiff has come forward with evidence that defendant Alexander discouraged students from utilizing ESU's writing center for assistance with writing deficiencies because “all they do is hire Asian people” at the writing center; that she advocated against implementing a certain program because she thought it would attract only Asian students; and that she lamented the fact that only Asian people were applying for open positions at library and information management schools. Viewed in the light most favorable to plaintiff, the evidence reflects that defendant Alexander spoke to plaintiff in harsh tones and in a disrespectful manner. She complained that plaintiff often kept his office door closed shut but did not complain when Caucasian faculty members kept their doors closed. Ultimately, defendant Alexander began complaining to other faculty members that plaintiff was not collegial and she advised other faculty members not to socialize or become too friendly with him.

         In December 2010, plaintiff received his first evaluation and plaintiff does not dispute that the evaluation was positive-indeed, defendant Alexander stated in the evaluation that plaintiff was “well on [his] way” to earning tenure and promotion. Plaintiff, however, believed that defendant Alexander, in the evaluation, minimized his accomplishments and inappropriately focused on collegiality and collaboration. In the evaluation, for example, defendant Alexander encouraged plaintiff “to bring forth your ideas, develop collegial relationships with senior and new faculty, and invest your time and energy in collaborative projects.” Plaintiff objected to the evaluation in part because it included implications about collegiality (which he felt were inaccurate) and he believed that ESU policy did not permit assessment or evaluation on the basis of collegiality. Plaintiff complained about his evaluation to then-Provost Tes Mehring and asserted that defendant Alexander was unfair to him in light of his June 2010 complaints about pay inequity. Plaintiff filed a grievance about the evaluation but later withdrew it. In June 2011, plaintiff accepted a probationary appointment for Fiscal Year 2012 at a salary of $55, 500 with two years of credit towards tenure.

         Plaintiff received another FPC evaluation in December 2011. In that evaluation, the FPC recommended that plaintiff's appointment with ESU and SLIM be renewed, Writing for the committee, Ann O'Neill noted plaintiff's strengths in teaching and research and labelled as “adequate” his “service” contributions. Under “other comments, ” Ms. O'Neill, on behalf of the committee, noted:

We believe that [plaintiff] could be a more active participant in SLIM functions. While he could make valuable contributions, he rarely speaks up and when he does, his comments are negative and alienating. We believe his isolation from and negativity toward other SLIM faculty do not encourage a collegial environment.

         Plaintiff believes that the FPC's description was “totally incorrect” and he submitted a letter to the FPC in response to the evaluation in which he challenged that assessment, among other things. In March 2012, defendant Alexander sent a letter to plaintiff about his 2011 FPC evaluation. In that letter, she indicated that plaintiff “continued to make progress toward tenure and promotion at SLIM” but encouraged him to “give attention to the tenure and promotion committee's comment about collegiality and make every effort to engage with [his] colleagues.” In June 2012, plaintiff accepted a probationary appointment for Fiscal Year 2013 at an increased salary of $58, 580 with three years of credit towards tenure.

         In December 2012, the FPC committee again recommended plaintiff's appointment with ESU and SLIM be renewed. Ms. O'Neill highlighted plaintiff's excellence in teaching and his “strength” in research. Nonetheless, the FPC again noted that it remained “concerned with [plaintiff's] lack of confidence in his SLIM colleagues and ESU.” Plaintiff submitted a letter to the FPC in response to the evaluation in which he urged that the FPC's references to collegiality were not relevant to any promotion criteria and were not tied to any specific tenure and promotion guidelines. In February 2013, then-Interim Dean Smith followed up with plaintiff about the FPC's evaluation. In that letter, Mr. Smith encouraged plaintiff to give attention to the FPC committee's “comments about participation, collegiality and attitude.” Mr. Smith continued:

It is imperative for the good of the institution that we keep our comments about our colleagues, programs, ESU and the Emporia community positive when addressing students and those beyond the university. Debate within our community is expected and encouraged, but if we denigrate our colleagues, the SLIM program and the university, we damage our own reputations even more than our university.[2]

         In June 2013, plaintiff accepted a probationary appointment for Fiscal Year 2014 at an increased salary of $59, 283.20 with four years of credit toward tenure.

         Plaintiff understood that his FPC annual review letters included concerns about collegiality. The parties dispute whether collegiality is ever an appropriate criterion for promotion decisions at ESU. Plaintiff maintains that university policy prohibits the consideration of collegiality in connection with any promotion decisions; defendants assert that collegiality is an appropriate factor to the extent that collegiality affects the work in teaching, research and service. In any event, in November 2013, the FPC faculty recommended that plaintiff's appointment with ESU and SLIM not be renewed. In its letter, the FPC stated in part as follows:

Despite our efforts in previous review letters to encourage [plaintiff] to collaborate with faculty and to share his teaching experiences, he has consistently rejected the FPC's comments in previous annual review letters which were designed to offer encouragement to junior faculty as well as to make additional suggestions for professional development and growth within SLIM. We regret that this professional advice has been repeatedly rejected in writing. We also regret that there is a corresponding lack of collegiality and cooperation between [plaintiff] and the rest of the SLIM faculty and staff.

         Plaintiff contends that defendant Alexander offered suggestions on what the FPC should include in the letter despite the fact that she was not an FPC member and, as the person who was required to review that recommendation, had a conflict of interest that prohibited her from participating in the drafting of the letter. Defendants assert that defendant Alexander simply responded to “procedural” questions posed to her from the committee about the contents of the letter. In any event, plaintiff submitted a rebuttal to the FPC evaluation under a cover letter dated December 16, 2013. The rebuttal addressed the FPC evaluation line by line. The FPC reviewed the rebuttal and stood by its recommendation.

         In late January 2014, defendant Alexander issued a letter to plaintiff indicating that she had reviewed the evaluation and plaintiff's response and that she concurred with the FPC recommendation such that she would recommend to defendant David P. Cordle, the Provost, that plaintiff's appointment not be renewed. Plaintiff responded to defendant Alexander and submitted a copy of his response to Provost Cordle. During this same time frame, plaintiff contacted the Faculty Affairs Committee for the purpose of obtaining assistance from an ombudsperson with respect to his challenge of defendant Alexander's and the FPC's recommendations. Plaintiff selected Dr. Michael Morales from the list of available ombudspersons. He provided Dr. Morales with a binder of materials that the parties have called a “pre-grievance binder.” The pre-grievance binder consists of 162 pages of materials, including plaintiff's responses to his FPC evaluation letters; the history of his personal dispute with defendant Alexander beginning with his “pay equity” complaint in July 2010; letters of support from colleagues and students; examples in which certain members of the department interfered with plaintiff's “academic freedom”; the department's alleged improper use of collegiality as a tenure review criterion; and a detailed list of plaintiff's accomplishments as compared to the accomplishments of his colleagues within SLIM. In addition, the binder contains allegations that a “culture of bias” exists within SLIM and notes high faculty turnover rates among people of color. Dr. Morales shared this binder with defendant Cordle in late January 2014.

         By letter dated February 28, 2014, Provost Cordle informed plaintiff that he decided not to renew plaintiff's probationary appointment at ES U.Significantly, plaintiff does not controvert that Provost Cordle made the non-renewal decision “based upon his own conclusion that [plaintiff] had not met expectations in the area of service.” According to Provost Cordle, the primary factor in his decision was plaintiff's failure to work as a positive member of SLIM's academic team. Provost Cordle stated that the materials that plaintiff had submitted to him through Dr. Morales substantiated the concerns expressed by defendant Alexander and the FPC-that plaintiff was unwilling to accept guidance and direction and displayed a negative attitude toward his colleagues. As explained by Provost Cordle in his letter to plaintiff:

In these materials, you focus inordinately on belittling your colleagues' accomplishments and demonstrate a tendency to reject even the most constructive criticism. Unfortunately, such a mindset does not leave much room for professional growth, nor it is predictive of your future success as an ESU faculty member. The collective work of the faculty in an academic unit is critically important, and the individual's contribution to that work is service in its truest sense. I am concerned that your participation in this collective work is problematic to the point of undermining the unit itself, and for that reason I conclude that your appointment should not be renewed.

         Provost Cordle's deposition testimony elaborated on the points raised in his letter and he confirmed in his deposition that, while he considered the recommendations of the FPC and defendant Alexander, his decision was based primarily on the materials submitted by plaintiff which Provost Cordle believed were submitted “with the idea of making a case for his reappointment.” Provost Cordle testified that he was “disturbed” by examples of plaintiff's “disdain and belittling” of his colleagues and plaintiff's “inordinate resentment of what other people have received and whether they deserve it or not.”

         In late March 2014, plaintiff filed a formal grievance with the FAC concerning his nonrenewal and, in April 2014, plaintiff submitted a formal complaint to Judy Anderson, ESU's executive director of human resources and affirmative action, asserting that the nonrenewal decision was based on plaintiff's race, color and national origin. During this same time frame, plaintiff filed a charge of discrimination with the Kansas Human Rights Commission. In early June 2014, plaintiff accepted a terminal appointment for Fiscal Year 2015. Shortly thereafter, defendant Alexander issued a letter to plaintiff detailing the expectations for his terminal appointment at ESU. Essentially, all academic responsibilities were removed from plaintiff and he was instructed to vacate his office and arrange for the return of his ESU equipment, keys and access cards. Defendants then changed the lock on the door of plaintiff's office. Defendants assert that they decided to simply pay plaintiff his salary without permitting him to work because plaintiff's continued presence in the department was detrimental to the department. The evidence reflects that these decisions were made jointly and primarily by defendant Alexander and defendant Cordle, who consulted with defendant Shonrock and ESU's general counsel.

         In November 2014, the grievance committee issued an initial determination affirming the FPC's decision to recommend plaintiff's non-reappointment and Provost Cordle's confirmation of that recommendation. The committee further concluded that a formal hearing on plaintiff's grievance was not necessary. Consistent with ESU policy, plaintiff was permitted to file a response to the initial determination. In late November 2014, the grievance committee issued a final determination to defendant Michael E. Shonrock, ESU's president. The grievance committee chair also sent a copy of the final determination to plaintiff. The final determination stated that the grievance committee members individually had spent many hours reviewing over 1000 pages of evidence and unanimously decided against plaintiff. It further noted that none of the committee members had requested argument or testimony on any issues such that a hearing was not required.

         In addition to issuing its final determination concerning plaintiff's nonrenewal, the grievance committee issued a separate memorandum to defendants Cordle and Shonrock (a memorandum that plaintiff calls a “secret” memorandum) that highlighted concerns the committee had based on its review of plaintiff's grievance. Those concerns included the following: that the SLIM administrative staff had engaged in offensive behavior (including the open expression of prejudice “toward various racial and ethnic groups, genders, members of various sexual orientations, and veneration of despicable individuals such as Adolph Hitler”); that was allowed to continue unchecked; that a “pervasive micro-management of faculty and staff” existed within SLIM and an undue attention to protocol that was unusual in an academic setting; that there appeared to be a “lack of an inclusive atmosphere” within SLIM where the contributions and ideas of all faculty and staff are welcomed and respected; that the “leadership style” within SLIM was more suited for a private sector organization rather than an academic setting.

         Plaintiff submitted a letter to defendant Shonrock on December 12, 2014 urging him to overrule the grievance committee's final determination and reinstate him as a professor at ESU. Defendant Shonrock concurred with the findings and recommendations of the grievance committee by letter dated January 9, 2015, thereby rendering a final decision on the termination of plaintiff's employment.

         Plaintiff is currently appointed as an Assistant Professor of Library and Information Science at St. ...


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