Opinion
Civil Action No. 02-3038.
January 7, 2004
Thomas R. Ashley, Esq., Newark, New Jersey, Attorney for Plaintiff.
Steven Gerber, Esq., Patti A. Scott, Esq, GERBER SAMSON, L.L.C., Wayne, New Jersey, Attorneys for Defendants.
OPINION
Dr. Regina Blackburn ("Dr. Blackburn") was a professor of African American Studies and English at Seton Hall University ("Seton Hall" or "the university") for six years. Her application for tenure and promotion to the position of Associate Professor ("tenure application") was denied in Spring 2000.
Dr. Blackburn filed suit in the Superior Court of New Jersey, Law Division, Essex County, alleging (1) that the denial of her tenure application was discriminatory, (2) that she was affirmatively prevented from developing the qualifications required for tenure, (3) that she was subjected to a hostile work environment while employed at Seton Hall, (4) that she experienced retaliation for complaining about the treatment she had received, and (5) that she was paid a discriminatorily low salary. She brought state tort law claims and claims of race- and gender-based discrimination under 42 U.S.C. § 2000e, et seq. ("Title VII"), the New Jersey Law Against Discrimination, N.J. STAT. ANN. § 10:5-1, et seq. ("NJLAD"), 42 U.S.C. § 1981 ("§ 1981"), 42 U.S.C. § 1985 ("§ 1985"), 42 U.S.C. § 1986 ("§ 1986"), and 42 U.S.C. § 1988 ("§ 1988").
In her Complaint, Dr. Blackburn also alleged that she suffered discrimination based on creed, color, national origin and ancestry. As the materials Dr. Blackburn submitted in connection to this motion relate only to accusations of race- and gender-based discrimination, however, the court will treat the claims of discrimination on other bases as abandoned.
In her Complaint, Dr. Blackburn also brought a claim under 42. U.S.C. § 1983. On December 17, 2002, however, the parties signed a Consent Order in which Dr. Blackburn agreed to dismiss that claim based on her recognition that neither Seton Hall nor the individually named defendants were "state actors."
Named as defendants were Seton Hall, and (in their individual as well as official capacities) the university's former Provost Mark Rocha ("Provost Rocha"), former Dean of the College of Arts Sciences at Seton Hall James Van Oosting ("Dean Van Oosting"), Chair of the African American Studies Department William Sales ("Dr. Sales"), former Chair of the English Department Chysanthy M. Grieco ("Dr. Grieco"), current Chair of the English Department Martha Carpentier ("Dr. Carpentier"), Coordinator of the Center for Learning, Instruction and Assessment with Seton Hall's Educational Opportunity Program Maurice O. Ene ("Ene"), and Assistant Director of the Education Opportunity Program Ingrid Hill ("Hill") (collectively, "Defendants").
Hill is misnamed in Dr. Blackburn's Complaint as "Ingrid Hall."
Defendants removed the case to federal court in June 2002. They have now moved for summary judgment as to all claims. The court will grant Defendants' motion because Dr. Blackburn has come forward with insufficient evidence to preserve a question of fact on any of her claims.
This is not to suggest that Dr. Blackburn's experience as an employee of Seton Hall was pleasant. The voluminous documents submitted by the parties in this case paint a picture of a professor whose joint appointment to the African American Studies and English Departments served her poorly. From the record it appears likely that Dr. Blackburn was, for example, expected to do the administrative work of two departments, but wasn't given the relief from teaching obligations that a professor appointed fully to one department would have received. This situation is undeniably unfortunate, but because the record does not indicate that it was attributable to discriminatory animus on the part of any of the Defendants, it is not actionable under federal or state anti-discrimination law, and the court is not empowered to remedy it.
Throughout this Opinion, the court will use the following abbreviations to refer to these documents: Seton Hall University Faculty Guide ("Faculty Guide"); Certification of Thomas R. Ashley (TA Cert"); Declaration of Mary McAleer Balkun ("MB Dec"); Deposition of Regina Lynn Blackburn ("RB Dep"); Certification of Regina Blackburn ("RB Cert"); Regina Blackburn's Answers to Defendant's Interrogatories ("RBIA"); Declaration of Martha C. Capentier ("MC Dec"); Deposition of Martha C. Capentier ("MC Dep"); Declaration of Maurice O. Ene ("ME Dec"); Declaration of Jeffrey H. Gray ("JG Dec"); Declaration of Chrysanthy M Grieco ("CG Dec"); Deposition of Chrysanthy M. Grieco ("CG Dep"); Declaration of Edmund H. Jones ("EJ Dec"); Declaration of Julia A. Miller ("JM Dec"); Deposition of Mark William Rocha ("MR Dep"); Declaration of William W. Sales ("WS Dec"); Deposition of William W. Sales ("WS Dep."); Declaration of James Van Oosting ("JVO Dec"); Deposition of James Van Oosting ("JVO Dep"); Declaration of Angela Jane Weisl ("AW Dec").
BACKGROUND
Unless otherwise noted, the following facts are undisputed or as alleged by Dr. Blackburn.
I. Facts relating to discriminatory denial of tenure claim and retaliation claim A. Dr. Blackburn's first five years at Seton Hall
On July 22, 1994, Seton Hall appointed Dr. Blackburn jointly to the African American Studies and English Departments as a tenure-track Assistant Professor. In the letter of appointment, Dr. Blackburn was informed, inter alia: (1) that the African American Studies Department would be her "primary department," and the English Department would be her secondary Department, (2) that in accordance with University policy, she would be evaluated annually and that her tenure review would occur in Fall 1999, and (3) that "[f]aculty members must meet the requirements for tenure as spelled out in the Faculty Guide and appropriate Departmental documents."
Prior to accepting the position at Seton Hall, Dr. Blackburn had been an Assistant Professor at Union County College ("Union"). She brought charges of race-based discrimination and tort claims against that institution, too, upon her departure. The Superior Court of New Jersey, Law Division, Union County, granted summary judgment for Union on November 7, 1997.
Over the five years in between her appointment and her tenure review, Dr. Blackburn taught at least two classes each semester in the African American Studies Department. These classes (which were usually cross-listed with the English Department) included Early African American Literature, Literature of the Harlem Renaissance, and Contemporary African Literature. Additionally, every semester but one (Spring 1997), Dr. Blackburn taught two classes that were listed solely in the English Department. These classes were more "remedial," or basic, than the classes Dr. Blackburn taught in the African American Studies Department. They were Basic Skills, College English I, and College English II.
Between 1994 and 1999, Dr. Blackburn also participated enthusiastically in university life at Seton Hall. For example, she brought speakers to and organized conferences on campus, organized off-campus trips for students, and served as faculty advisor to the Black Student Union and as a mentor to new freshman in the Educational Opportunity Program ("EOP").
During her time at Seton Hall, Dr. Blackburn was less active as a scholar than as a teacher and participant in university life. It was generally understood among most of the members of the Seton Hall faculty and administration that publishing in peer-reviewed journals was the sine qua non of tenure. Over the years, supervisors and colleagues reminded Dr. Blackburn often and in many contexts of the importance of such publications to her prospects for tenure. Dr. Blackburn concedes that she recognized that "[p]ublication is extremely important, and is often a key factor in obtaining tenure." Complaint ¶ 11. Nevertheless, there is no evidence that she published a single piece in a peer-reviewed journal during her entire time at Seton Hall.
When asked during his Deposition whether at Seton Hall there is a "one publication" requirement for tenure, Dean Van Oosting said "Absolutely, at least, yes. That would be minimal. And a significant advocacy case would need to be made for one, but it would have to be at least one. A norm would be more than that." JVO Dep at 35. Similarly, in her Deposition, Dr. Carpentier stated that "[e]ver since [she has] been in academia, [she has] understood [publication] to be [the] requirement. And it's part of the field." MC Dep at 46.
In the English Department's second year evaluation of Dr. Blackburn, Department Chair Dr. Grieco wrote, "I have spoken to Dr. Blackburn about the necessity to publish in order for her to receive tenure." Dr. Blackburn's colleague Dr. Gray stated in his submission to the court that "Regina asked me about the tenure review process. I specifically recall informing her that the most important thing for her to focus on was publishing. We additionally had spoken about the need for her to publish at least once before that conversation." JG Dec ¶ 16. Another colleague — Dr. Weisl — stated that "[a]pproximately one year prior to the time that Plaintiff and I applied for promotion with tenure, the Plaintiff made a presentation before the English Department at which time it was clear that she lacked any publications. The faculty members who were present at that presentation made it clear to the Plaintiff that she would need to publish in order to receive tenure." AW Dec ¶ 16 . Dr. Blackburn herself stated in her Deposition that "[former] Dean Hirsh told me that I would need a couple of articles to obtain tenure." RB Dep at 141.
Dr. Blackburn complains that she was unable to publish because she was frequently denied "release time" (reduction in courseload) to work on her scholarship, and was consistently assigned to teach English 1201, a class that required her to grade copious student papers. Dr. Blackburn claims white assistant professors were treated differently in this regard. "Nothing that I complained about, nothing that I asked about was granted," she claims, "and I observed [the English Department Chair] almost ushering in the three white candidates for tenure." RB Dep at 198.
Dr. Blackburn also claims that she was inadequately "mentored" and assisted in developing her resume in preparation for tenure review by her departments' Chairs, Dr. Grieco and Dr. Sales. For example, Dr. Sales would not agree to co-author an article with her because their "writing styles were too different," RB Dep at 44. Dr. Grieco encouraged her to continue with the novel she was writing, neglecting to "warn her that her time should be used for writings that could qualify for tenure approval," RB Dec 21, and failed explicitly to make her aware that she could volunteer for administrative positions in the English Department that would qualify her for release time. Dr. Blackburn's Opposition Brief at 14. The court will address these claims in Section III of the Discussion portion of this Opinion.
As promised, Dr. Blackburn was reviewed annually by the departments in which she taught. Defendants have submitted some but not all of the evaluation reports from these annual reviews. A perusal of the reports reveals that Dr. Blackburn's performance was regarded positively at first, but that concerns about her teaching, lack of publications and involvement with the affairs of the English Department multiplied as time went on.
For example, the African American Studies Department's evaluation from 1995 was largely positive, praising Dr. Blackburn's teaching ability and expressing optimism about her future publications and scholarship. The English Department's evaluation for the next year praised Dr. Blackburn's participation in the English Department's Basic Skills Committee and Open House for the recruitment of freshmen, but expressed concern about her lack of visibility in and availability to the English Department, her teaching style, and the low enrollment in her courses. The English Department evaluation from Dr. Blackburn's fourth year lists instances of Dr. Blackburn's service to the university, but expresses concern about low enrollments in her classes, student complaints about Dr. Blackburn's missing classes, and Dr. Blackburn's lack of full involvement in the affairs of the English Department. The English Department's fifth year evaluation reports a high level of student satisfaction with Dr. Blackburn's classes, but expresses dismay that Dr. Blackburn was not a member of any of the English Department's committees and that she had published nothing in her time at Seton Hall.
In Spring 1999, all but one of the faculty members in the English Department voted to keep Dr. Blackburn on for another year. In their ballots, however, several faculty members expressed concern that Dr. Blackburn might not be eligible for tenure in the fall given her complete lack of publications. Dr. Blackburn submitted her application for tenure and promotion to the position of Associate Professor in September 1999.
B. Tenure review procedures standards at Seton Hall
Tenure applications at Seton Hall are considered by a series of groups and individuals ("reviewers"), each of whom makes a recommendation as to whether the application should be granted or denied. First, the faculty members in the Department in which the candidate teaches review the application, vote and submit a Departmental recommendation to the Dean. When a candidate is appointed jointly to two departments, as Dr. Blackburn was, both her Departments submit recommendations to the Dean. The Dean then convenes the College Rank and Tenure Committee ("College Committee") whose elected members are tenured professors representing various departments in the college. After reviewing the application, both the College Committee and the Dean submit recommendations to the Provost, who convenes the University Rank and Tenure Committee ("University Committee"). The University Committee reviews the application and makes its recommendation to the Provost. If the Provost himself endorses the application, it is forwarded to the Board of Regents for final approval. Faculty Guide 5.1.
The Faculty Guide indicates that in deciding whether to recommend for or against tenure, each reviewer is to consider the candidate's (1) teaching effectiveness, (2) service to the university, the profession, and the community, and (3) scholarship including research or other creative work. Faculty Guide Article 4. These three criteria — excellence in teaching, service and scholarship — are at least partially unquantifiable, and an evaluation of them is thus necessarily subjective. The Faculty Guide does, however, provide some concrete guidance to assist reviewers in evaluating tenure candidates.
For example, to demonstrate teaching effectiveness, the Faculty Guide states that candidates may submit, inter alia, a "statement of teaching objectives," "evaluation and grading methods," "formal student evaluations of teaching," and records of "classroom observation by the chairperson."
The Faculty Guide also defines and gives examples of service to the University, the profession and the community. Faculty Guide § 4.4 ("Service to the University, the Profession, and the Community") reads
a. Service to the university
1. Service to students such as serving as faculty moderator of a student activity or engaging in extra-academic activities with students.
2. Service on committees, task forces, governmental bodies; offices held, and specific contributions to the group.
b. Service to the profession. Membership and offices held in professional organizations; contributing consultative, advisory, or editorial service in a professional capacity.
c. Service to the community. Lectures, panel discussions, membership on advisory boards or civic committees; involvement in community, political, or charitable organizations; services to religious bodies or to government.
The Faculty Guide is most specific in its explanation of the "scholarship" criterion. It states that evidence of "scholarship" generally includes both "papers presented to professional organizations" and published work, but is clear that reviewers should weigh certain kinds of scholarship more heavily than others: "greater weight shall be given to original authorship than to editorial work, to articles in refereed journals than in nonrefereed journals, to nonrefereed journals than to self-published or unpublished materials." Faculty Guide § 4.3 (c). Further, the Faculty Guide specifies that tenure reviewers should not consider work a candidate published before his or her appointment at Seton Hall.
Despite guidance such as this, the standard for tenure ultimately remains a deeply subjective one because the Faculty Guide does not indicate, for example, whether a tenure candidate must be strong in all three areas — teaching, service, and scholarship — or whether strength in one area may compensate for weakness in another, and whether or not reviewers ought to weigh any one of the criteria more than the others. Thus, in the end, a reviewer's determination that a tenure candidate has just the right combination of criteria-fulfilling qualities to be tenure-worthy, is inescapably a subjective one.
The record indicates that in practice criteria might be weighted differently at different points in the process of tenure review. For example, in his Deposition, Dr. Sales indicated that "in the Department of African American Studies, we're looking for much more than someone who can simply get a [sic] article in a peer-review journal. On the other hand, I think the college places a greater emphasis than our department on publications and in that sense, peer-reviewed journals." WS Dep at 70-71. This latter observation appears to be confirmed by a comment Dean Van Oosting made in his letter to Provost Rocha recommending denial of Dr. Blackburn's application, that he "consistently said `no' to any applicant with zero publications in a field where publication is the standard measure of scholarly recognition."
C. Dr. Blackburn's tenure application
Dr. Blackburn's tenure application summarized her work in all three areas — teaching, service and scholarship. She also included a general curriculum vitae and letters of reference from two former colleagues from California State University, Long Beach and a professor in the Seton Hall School of Diplomacy International Relations with whom she had worked on two projects.
In the "scholarship" section of her application, Dr. Blackburn did not list a single article published in a peer-reviewed or refereed journal in between the time she began working at Seton Hall and the time of her application for tenure. She did list numerous conference papers and lectures that she delivered during her time at Seton Hall, articles she had published before Seton Hall hired her, a section listing and describing "works in progress," and two articles listed as "forthcoming." Dr. Blackburn did not attach letters of acceptance from the publisher regarding these "forthcoming" articles as required by the Faculty Guide. Faculty Guide § 4.3 (b).
She claims she had published one such article while at Seton Hall, but that she inadvertently failed to mention it on her tenure application. RB Dep at 203-206.
In the "works in progress" section, Dr. Blackburn listed, inter alia, a piece called The Wilsonian Canon: The Plays of August Wilson — A Study Guide for the Plays and Internet Critiques which she noted she would be co-writing with Provost Rocha. Dr. Blackburn had taken Provost Rocha's class on Wilson and claims that her collaboration with him on this project developed out of a paper she wrote in that class. Provost Rocha, however, has denied agreeing to any such collaboration, not only in the context of this lawsuit, but also when asked by other faculty members about it around the time of Dr. Blackburn's tenure application.
Provost Rocha stated in his Deposition that "I've had other graduate students who have published articles; but the notion that is stated on her application . . . that Dr. Blackburn and I were actively engaged in a project of any kind, and that I gave any kind of specific permission to Dr. Blackburn to use my name to that effect is just not so. And it's quite upsetting to me . . . because it's a grievous, grievous violation of professional courtesy and ethics to ever list anybody else's name on a project unless you have the most scrupulous kind of written permission." MR Dep at 75-76.
Dr. Blackburn claims that Provost Rocha's denial is belied by a handwritten note she submitted in which Provost Rocha declared that he wanted to copy a paper she wrote for his class to use "as a study guide for future students," that within that paper there were "a lot of publishable pieces," and that he would "be glad to help" her develop the pieces for publication. The court finds that these comments, though supportive, are not open to being interpreted as a commitment by Provost Rocha to co-author a book with Dr. Blackburn.
See, e.g., October 21, 1999 e-mail from Provost Rocha to Dr. Gray, in which Provost Rocha stated "[i]t is true Regina has completed a book that is a study guide for August Wilson and has approached me about co-authoring this with her. While the manuscript she showed me is a considerable work, it is all hers and I have no intention of working with her on this project. Even if I wanted to, it would simply not be appropriate for me as provost to do so."
Applicants for tenure have a right to appear and make a presentation before the Dean and to the Department and both the College and University Committees. Dr. Blackburn elected to appear before the English Department and both Committees in connection with her application. During her presentation before the English Department, she accused Dr. Grieco of having discriminated against her throughout her time at Seton Hall. MC Dep at 52. In response, Dr. Blackburn claims (although Dr. Carpentier denies, MC Dep at 53) that Dr. Carpentier told Dr. Blackburn "Shut up. Did I tell you to speak, you speak when spoken to," and asked her "How dare you talk about the Chair of the Department that way?" Complaint ¶ 38. Dr. Blackburn's colleague Professor Jeffrey H. Gray ("Dr. Gray"), who ultimately voted for Dr. Blackburn's application, asked her "what in heaven's name" she was doing and reminded her that she was supposed to be informing the English Department members why they should support her application for tenure.
D. Reviewers' reactions to Dr. Blackburn's application
Dr. Sales recommended on behalf of the African American Studies Department that Seton Hall grant Dr. Blackburn's tenure application. In his letter of recommendation, Dr. Sales praised Dr. Blackburn's teaching and service records. He wrote that he had observed Dr. Blackburn teaching on numerous occasions and that he "consistently found that she was well prepared for class, quite knowledgeable of the subject matter, innovative in her teaching methods and enjoying excellent rapport with her students." Dr. Sales also noted that "Dr. Blackburn has rendered excellent service to the department and to the SHU community," mentioning cultural enrichment trips she had organized and her participation in coordinating the university's commemoration of Black History Month.
It appears from the record that Dr. Sales alone decided how the African American Studies Department would vote on Dr. Blackburn's application. There were other professors in the department at the time, but nothing in the record suggested that they voted on the issue, perhaps because Dr. Sales was the only one of them who himself had tenure in Fall 1999. WS Dep at 47.
As far as the criterion of scholarship was concerned, Dr. Sales noted that Dr. Blackburn had been "active reading papers at academic conferences in African American Studies on both sides of the Atlantic," and that she was currently at work on many publications. Regarding her failure to publish while at Seton Hall, Dr. Sales indicated that her unique position as a jointly appointed professor made it difficult for her to fulfill the publication criterion for tenure. He wrote
I think it is appropriate at this point to bring to the attention of all concerned an intractable problem of those facing tenure decisions in two departments. Dr. Blackburn each semester teaches two sections of English composition. In addition, she is expected to meet the committee assignments and publications demands of two departments. She has made a valiant effort to do this and in my opinion as a result has been slightly delayed in her publication schedule. My concern is that she has been disadvantaged in the tenure process compared to the bulk of applicants who do not have to serve [two] masters. Theoretically, she is primarily responsible to African American Studies. The fact of the matter, however, is that she has been held to a standard in English which takes no regard of her primary appointment to AFAM.
In the Declaration he submitted with Defendants' motion to dismiss, Dr. Sales qualified these remarks somewhat. He indicated that he recommended Dr. Blackburn in part because he was concerned that if she was not promoted, the African American Studies Department might lose a tenure-track line. WS Dec ¶ 36. He also conveyed that when he "recommended [Dr. Blackburn] for promotion with tenure, [he] was also operating under a belief [ultimately proved incorrect] that she was collaborating with Provost Rocha, on [ The Wilsonian Canon] based upon representations which Dr. Blackburn made to me." Id. at ¶ 38.
Unlike the African American Studies Department, the English Department recommended that Seton Hall deny Dr. Blackburn's application. Within the department, three faculty members voted for — and six against — Dr. Blackburn's application. One of the members who voted for Dr. Blackburn's application — Dr. Gray — admitted in his Declaration, however, that "[t]he truth of the matter . . . is that I voted for Regina because we were friendly and because I felt bad for her, and not because I believed that she had earned the promotion she was seeking." JG Dec ¶ 20.
Several faculty members expressed concern about Dr. Blackburn's attitude on their ballots. Two members of the faculty — one who voted for her application and one who voted against it — mentioned Dr. Blackburn's "lack of collegiality." On the first two criteria for tenure — teaching and service — the faculty gave mixed reviews.
Several faculty members registered serious concern with Dr. Blackburn's service to the English Department. They noted, for example, that Dr. Blackburn "has not participated meaningfully in any of the Department's many and demanding committees," and that she had "provided no evidence of participation on English Department committees." One commented that while Dr. Blackburn "made a wonderful contribution to English majors and to the Department when she organized the trip to the premiere of [the film] Beloved, . . . that cannot stand as a substitute for the less glamorous committee work of running a writing program." On the other hand, one member of the faculty noted without elaboration that Dr. Blackburn's "service record" was "very strong," and another echoed the sentiment that Dr. Sales had expressed by suggesting that her "considerable service" on committees in the African American Studies Department should excuse her from serving on English Department committees.
Voting faculty members gave similarly mixed reviews of Dr. Blackburn's teaching. One noted that "Dr. Grieco has observed [Dr. Blackburn] and said her teaching was acceptable," and that she had "a following among Seton Hall students," and another commented that her teaching record was "very strong." On the other hand, one reviewer noted that "[t]his candidate does not seem to qualify for tenure . . . in teaching effectiveness," and another noted that
Last year I taught a class in a room next to a room where Dr. Blackburn was teaching at the same time. On several occasions it was impossible for me to conduct my class because students in Dr. Blackburn's class were literally screaming at each other, shoving each other and in general horsing around as if the classroom were a locker [sic] in a high school. I can't imagine what kind of `teaching' could take place with such minimal control by a professor.
The primary justification those who voted against Dr. Blackburn's application gave for their vote was Dr. Blackburn's lack of published scholarship. Even one of the members who voted in favor of her application noted that she had "insufficient scholarship." Those who voted against her uniformly expressed dismay at her "total lack of recent, published scholarship," commenting, for example, that she did "not have the necessary scholarship for the associateship [because] [s]he has not published for more than 10 years," and that due to her lack of publications "she lacks the credentials she should have for tenure at Seton Hall University."
All bodies and individuals reviewing Dr. Blackburn's tenure application after the English and African American Studies Departments recommended against granting Dr. Blackburn tenure. The members of the College Committee voted eight-to-one — and the members of the University Committee voted seven-to-two — against Dr. Blackburn's application. Although many members of both committees had flattering things to say about Dr. Blackburn's teaching and service records, they overwhelmingly concluded that due to her lack of scholarship she was unqualified for tenure.
Provost Provost Rocha recommended against Dr. Blackburn as well, as did Dean Van Oosting, largely because of her sparse publication record. Van Oosting noted that in "the 41 cases for tenure which I have adjudicated in my three years as Dean of the College of Arts and Sciences, I have consistently said `no' to any applicant with zero publications in a field where publication is the standard measure of scholarly recognition. This decision, hence, is consistent with past judgments and practices."
After being denied tenure, Dr. Blackburn stayed on and taught at Seton Hall for one more year, as was customary for faculty in her position. Faculty Guide 3.2 (d).
E. Dr. Blackburn's predecessors and successor
The information in this sub-section is drawn primarily from the Declaration of Julia A. Miller ("Miller"), the former Director for Seton Hall's Center for Black Studies. Defendants assert that "Miller's Affidavit is based upon hearsay," Defendants' Reply Brief at 1, but it seems clear that Miller, as the faculty member who hired Drs. Banks and Auguste, would have personal knowledge of at least the facts from her sworn Declaration that the court repeats here. Statements of individuals submitted in opposition to a motion for summary judgment are admissible if they are made on the basis of personal knowledge and would be admissible as evidence. FED. R. CIV. P. 56(e); 11-56 MOORE'S FEDERAL PRACTICE § 56.14[1][d] (Matthew Bender 3d ed.).
More than a decade before the university hired Dr. Blackburn, Seton Hall appointed Dr. Margo Banks ("Dr. Banks") jointly to the African American Studies and English Departments. After two years, Dr. Banks transferred from her joint appointment to a full appointment in the English Department. The English Department later voted to deny her tenure.
Dr. Banks has not submitted an affidavit in this lawsuit.
At some unspecified later point, Seton Hall appointed Dr. Yves Auguste ("Dr. Auguste") jointly to the African American Studies and English Departments. Dr. Auguste had a prestigious resume: he had received his PhD from the Sorbonne, and prior to his appointment to Seton Hall, he was the Haitian Ambassador to Spain. The English Department initially recommended a denial of tenure to Dr. Auguste. The director of the precursor to the African American Studies Department spoke to a "senior academic officer" in the English Department, however, and advised that if Seton Hall did not grant Dr. Auguste tenure, she and others from her department would protest. Seton Hall ultimately granted Dr. Auguste tenure. In the end, though, Dr. Auguste left Seton Hall to become the Ambassador from the United Nations to the Republic of Haiti. JM Dec ¶¶ 9-16. He has since passed away.
After Dr. Blackburn departure from Seton Hall in 2001, the university hired Dr. Simone Alexander ("Dr. Alexander") to teach many of the classes Dr. Blackburn had taught. Though Dr. Alexander was Dr. Blackburn's replacement, she was not jointly appointed to the African American Studies and English Departments as Dr. Blackburn was (and Drs. Banks and Auguste had been), but was rather appointed fully to the African American Studies Department. Dr. Carpentier concedes that "the appointment was changed due to Dr. Blackburn's complaints about it." MC Dep at 31.
II. Facts relating to hostile work environment claim A. The EOP incident
Seton Hall's EOP is a state funded program administered by Seton Hall which is designed to recruit, admit and provide support services to students who have the potential to do college work but who might not otherwise be accepted through regular college admissions procedures, and who are dependent upon financial aid to obtain a college education. Over the summers of 1998 and 1999, Dr. Blackburn taught in the 7-week Freshman Summer Program for the EOP.
One summer Dr. Blackburn realized that several students in her class could not read or write. She believed that no amount of remedial education was going to give them the capacity to perform at the level at which they needed to perform, and so she gave them failing grades.
During the semester, English Professor Ed Jones ("Jones") approached Dr. Blackburn angrily, telling her that several students whom she had "passed through" the EOP were now in his class and could not read. Dr. Blackburn informed Jones that she in fact had not passed these students, but rather had submitted failing grades for them. She was nevertheless "removed from eligibility" to teach any further classes in the EOP.
Dr. Blackburn claims that EOP staffer Ene submitted a grade sheet passing the students Dr. Blackburn had failed and forged her signature on this sheet. She alleges that there was "an unwritten rule" that none of the students in the EOP would be failed.
Dr. Blackburn alleges that a desire not to lose state funding for the EOP motivated adherence to this unwritten rule. Significantly, she does not allege or present evidence that discriminatory animus motivated Ene allegedly to change her failing grades to passing grades.
Dr. Blackburn also claims that Ene and EOP Assistant Director Hill met with Dr. Grieco and others to tell her that Dr. Blackburn had lied about failing students in the EOP. She asserts that her "reputation was ruined because of the appearance that she had lied about the grading, and other professors in the Department no longer trusted her." Complaint ¶ 36. Ene denies all of these allegations. ME Dec ¶¶ 8, 9 37.
B. English Department brochure
In 1995, the English Department released a brochure that described the English curriculum and listed the Department's faculty. Though other untenured professors were listed in the brochure, Dr. Blackburn was not. Dr. Blackburn states that
The omission of Dr. Blackburn's name in this 1995 brochure was deliberate and malicious. It was very painful. Dr. Blackburn's students asked her why her name was not in the brochure. All of the classes Dr. Blackburn taught at Seton Hall were listed in the English Department. Dr. Blackburn was full-time joint appointed. Dr. Blackburn was not half-time in any way. Dr. Blackburn complained to Dr. Grieco about the omission. Dr. Blackburn told her she felt slighted and discriminated against . . . The omission of Dr. Blackburn's name was indicative of the discrimination she faced from the beginning. It was painful. Dr. Blackburn was left with an emptimess that haunted her soul and made to feel alienated and abused. Dr. Blackburn was grading thousands of English compositions and African American Literature essays under the guise of the English Department, and they deliberately did not list Dr. Blackburn's [sic] as a member of the English Department.
RB Cert at 22. Dr. Blackburn avers that in a portion of her Deposition not submitted to the court, Dr. Grieco defended the omission by explaining that "full-time faculty are listed," and that Dr. Blackburn, because she was a joint appointee, was not a "full-time faculty member" in the English Department.
Dr. Grieco denies many of the facts and characterizations in this section, but in this procedural posture, the court will not make credibility determinations and will resolve all contradictions in favor of the plaintiff.
Dr. Blackburn seems to have had a particularly fraught relationship with Dr. Grieco, who she claims "talked down to" her, RB Cert at 16, and treated her as "half time faculty." RB Dec at 24. The generalized hostility she claims to have felt from Dr. Grieco allegedly manifested in several troubling incidents.
For example, after the Fall 1997 semester, when Dr. Blackburn carried a particularly heavy teaching load, Dr. Grieco asked Dr. Blackburn to teach an extra class. When Dr. Blackburn responded that she did not have the time to do so, Dr. Grieco "responded with disdain" and "refused to provide [Dr. Blackburn] with the classroom assignment for her course schedule" for the semester, Complaint ¶ 24, instead instructing Dr. Blackburn that she should find the classrooms herself. RBIA at 8-9; RB Dep at 11. Because she did not know to which classroom she had been assigned, Dr. Blackburn was reduced on the first day of classes to "walking the halls and poking her head into classes to determine which class was hers." When she finally found the correct classroom, she was approximately fifteen minutes late for the class. Despite the fact that Dr. Grieco had created this situation by refusing to give Dr. Blackburn her room assignments, Dr. Grieco reprimanded Dr. Blackburn for her tardiness to class. RBIA at 11; Complaint ¶¶ 25-26.
Another incident centered around minority representation and physical space in the English Department. Dr. Blackburn's office was located physically in the African American Studies Department, which was for at least part of Dr. Blackburn's employment at Seton Hall in a different building than the English Department. In or about 1996, Dr. Grieco told Dr. Blackburn that she should be spending more time in the English Department. Dr. Blackburn was the only tenure-track African American professor in the English Department and Dr. Grieco commented that she should "show her color around here" more often. Dr. Blackburn was offended, but agreed to the request. She in turn asked to be provided with an office or even a desk in the English Department so that she could grade papers, etc. during the time she would now be spending there, rather than just "walk[ing] aimlessly through the department." RBIA at 10. The English Department, however, never provided her with a desk. Dr. Grieco told here "there was not a desk even to share."
Id. Dr. Grieco affirmed in her Deposition that space in the English Department was tight: "[w]e had very few offices so everyone either had a double or triple . . . in some offices we [could] only provide two drawers and a desk because we have so many faculty fitting in so few rooms." CG Dep at 74.
Dr. Blackburn also claims that Dr. Grieco in general failed to take seriously and support her contributions to Seton Hall, or to recognize their value to the English Department specifically. For example, at one point, Dr. Blackburn obtained tickets to the premiere of Beloved, the movie based on the novel by Toni Morrison. She arranged for 150 students in the English Department to attend the premiere. In preparation for the outing, many students read the novel Beloved, leading Dean Van Oosting later to comment that Dr. Blackburn had "ignited a reading revolution." RBIA at 10. Dr. Blackburn claims that Dr. Grieco, however, said that this outing may have "counted" as service to the African American Studies Department, but that it had nothing to do with the English Department. Dr. Blackburn states that
Emotionally, that was a turning point for [her]. [She] was so depressed by Dr. Grieco's perception and the fact that she said it to [Dr. Blackburn] that [Dr. Blackburn's] students started asking her what was wrong. [Dr. Blackburn] felt an overwhelming sadness. Dr. Blackburn was offended. Dr. Blackburn was appalled. Toni Morrison is a Nobel Prize Laureate in Literature. She is an American author. She is an African American author. She is a female author. For Dr. Grieco to make such a statement illustrated racism for [Dr. Blackburn].
RB Cert at 23.
Dr. Blackburn describes another instance when she claims Dr. Grieco refused to recognize the value of her contributions. On the same weekend that Dr. Blackburn was to attend an English Department writing workshop, several of her students asked her to chaperone them on a trip to Pennsylvania to attend the Million Woman March. To accommodate her students' request, Dr. Blackburn left the writing workshop four hours early. Dr. Blackburn had received a stipend to cover her costs at the writing workshop, but because she left early, Dr. Grieco docked a fifth of that stipend.
D. African American Literary Experience
In Fall 2000, after Seton Hall denied Dr. Blackburn's tenure application, Dr. Carpentier replaced Dr. Grieco as the Chair of the English Department. Dr. Carpentier assigned Dr. Blackburn's colleague Professor Mary McAleer Balkun ("Dr. Balkun") to teach a graduate level course entitled "The African-American Literary Experience" during the Spring 2001 semester. Dr. Blackburn believed that she should have been assigned to teach the class, as it dealt with her area of specialty, whereas, she claims, Dr. Balkun "had not even read the books which were involved in the class." Complaint ¶ 47. Dr. Carpentier, however, did not believe that Dr. Blackburn was qualified to teach the class. MC Dep at 78-79, WS Dep at 57.
The record shows that, whether or not Dr. Balkun had previously read every book on the class' syllabus, she did have some prior experience with the topic of the class. She had, for example, written a chapter of her dissertation (accepted in 1994 and turned into a book-length manuscript in Spring 2001) on Nella Larsen, a Harlem Renaissance novelist. Further, in December 2000, the African American Review — the pre-eminent peer reviewed journal in the field of African American literature — accepted for publication a paper Dr. Balkun had written and presented at numerous conferences about Phyllis Wheatley, an early African American poet. MB Dec at ¶¶ 8-11.
* * * *
Dr. Blackburn claims that as a result of the treatment she suffered at Seton Hall, she started seeing a therapist, RBIA at 19-20, and that she currently suffers from post-traumatic stress disorder and severe depression. RB Dec at 5.
Dr. Blackburn alleges that Defendants discriminated against her when they denied her tenure, and that they actively prevented her from developing the qualifications necessary to be eligible for tenure. She also alleges that she suffered a hostile work environment, retaliation for protected activity, and unequal pay. Defendants have moved for summary judgment as to all claims.
DISCUSSION
I. Standard of review
Summary judgment will be granted if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) imposes a burden on the moving party simply to point out to the district court that there is an absence of evidence to support the nonmoving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party has met this burden, the burden then shifts to the non-moving party. She "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, she may not simply "replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Rather, she must "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial.Anderson, 477 U.S. at 249. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247. In determining whether there exists a material issue of disputed fact, however, the facts and the inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Pollock v. American Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues. Stewart v. Rutgers, 120 F.3d 426, 431 (3d Cir. 1997).
II. Discriminatory denial of tenure claim
Dr. Blackburn argues that when Seton Hall denied her tenure the university discriminated against her on the basis of her race and gender in violation of Title VII, the NJLAD and § 1981. A. Title VII
Dr. Blackburn may not use § 1981 as a vehicle for her allegations of gender-based discrimination because the Supreme Court has construed the section to forbid only race-based discrimination. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987).
Dr. Blackburn's claim that her denial of tenure violated Title VII is time-barred because she did not file her charge of discrimination with the EEOC within 300 days of that denial. Under Title VII, a charge of discrimination in employment must be filed with the EEOC within 180 days of the occurrence of the alleged unlawful employment practice, unless the complainant has initiated a complaint with a parallel state agency, in which case the period for filing the charge with the EEOC is extended to 300 days from the date of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1); Burgh v. Borough Council of the Bourough of Montrose, 251 F.3d 465, 469 (3d Cir. 2001). In the context of a request to alter the timely filing requirements of Title VII, the Supreme Court has stated that "strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law."National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 108 (2002).
Dr. Blackburn was denied tenure on March 30, 2000 (according to Seton Hall, Defendants' Brief at 7) or April 1, 2000 (according to Dr. Blackburn, Complaint ¶ 46). Because she initiated her complaint with both the EEOC and the New Jersey Division of Civil Rights, she was required to file her charge within 300 days of the denial, see Cardenas v. Massey, 269 F.3d 251, 255 n. 2 (3d Cir. 2001), or by January 25 or 26, 2001. Dr. Blackburn did not file her charge with the EEOC, however, until February 2, 2001. Her claim is thus time-barred.
B. § 1981 and the NJLAD
There are no procedural barriers, however, to Dr. Blackburn's claims of discriminatory denial of tenure under either § 1981 or the NJLAD. The court will thus consider these claims in the merits.
Dr. Blackburn's § 1981 claim is subject to a two-year statute of limitations. Zubi v. ATT Corp., 219 F.3d 220, 225 (3d Cir. 2000); N.J. STAT. ANN. § 2A:14-2. A two-year statute of limitations also applies to NJLAD claims whose "operative facts" occurred after July 27, 1993. Cardenas, 269 F.3d at 255;Montells v. Haynes, 627 A.2d 654 (N.J. 1993). To maintain an action under § 1981 or the NJLAD, Dr. Blackburn thus had to file her complaint on or before March 30, 2002 or April 1, 2002. She filed her complaint just in time — on March 28, 2002 — and thus her claim is not time-barred.
The NJLAD claim is similarly not barred by a failure to exhaust remedies because exhaustion of state administrative remedies is not required under the NJLAD. See Lemke v. International Total Services, Inc., 56 F.Supp. 2d 472, 482 (D.N.J. 1999) (Barry, J.).
1. Tenure decisions and anti-discrimination law: general principles
Courts of appeals have repeatedly noted that tenure decisions involve unique factors which set them apart from ordinary employment decisions, and that federal courts should exercise caution in reviewing them. See, e.g., Kunda v. Muhlenberg College, 621 F.2d 532, 547-48 (3d Cir. 1980); Fisher v. Vassar College, 195 F. Supp. 2d 1420, 1434-35 (2d Cir. 1995);Villanueva v. Wellesley College, 930 F.2d 124, 129 (1st Cir. 1991). A court should not "sit as a super tenure review board,"Roebuck v. Drexel University, 852 F.2d 715, 731 (3d Cir. 1988);Weinstock v. Columbia University, 224 F.3d 33, 47 (2d Cir. 2000), because, as the Court of Appeals explained,
generally faculty employment decisions comprehend discretionary academic determinations which . . . entail review of the intellectual work product of the candidate. That decision is most effectively made within the university . . . Wherever the responsibility lies within the institution, it is clear that courts must be vigilant not to intrude into that determination, and should not substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure. Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they can be shown to have been used as the mechanism to obscure discrimination, they must be left for evaluation by the professionals.621 F.2d at 547-548.
There is no question, however, that anti-discrimination laws apply to colleges and universities no less than to other employers. "Congress did not intend that [academic] institutions which employ persons who work primarily with their mental faculties should enjoy a different status" under anti-discrimination laws "than those which employ persons who work primarily with their hands." Id, 621 F.2d at 550. In resolving disputes over denials of tenure, then, courts must strike a careful balance between these two principles.
2. Legal standard
Under § 1981, "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . ." For the purposes of the section, "the term `make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). The NJLAD makes it "an unlawful employment practice . . . [f]or an employer, because of the race . . . [or] sex . . . of any individual . . . to refuse to hire or employ or to bar or to discharge or require to retire . . . from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.J. STAT. ANN. § 10:5-12.
Absent direct or overt evidence of discrimination, the court analyzes § 1981 and NJLAD claims under the familiar burden-shifting framework originally developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and refined inTexas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Pamintuan v. Nanticoke Memorial Hosp., 192 F.3d 378, 385 (3d Cir. 1999) and Stewart, 120 F.3d at 431-32 (§ 1981); Marzano v. Computer Science Inc., 91 F.3d 497, 502 (3d Cir. 1996) and Bray v. Marriott Hotels, 110 F.3d 986, 998 (3d Cir. 1997) (NJLAD).
Under this framework, the plaintiff must carry the initial burden of establishing a prima facie case of unlawful discrimination. To do this, the plaintiff must demonstrate that (1) she is a member of a protected class, (2) she was qualified but nevertheless rejected for the position she sought, and (3) nonmembers of the protected class were treated more favorably.Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 281-82 (3d Cir. 2001).
If the plaintiff succeeds in establishing a prima facie case, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the allegedly discriminatory employment action. "The employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Once the employer has fulfilled this relatively light burden, the burden shifts again to the plaintiff to show by the preponderance of the evidence that the employer's proffered explanation is pretextual.
Thus, Seton Hall will prevail on its motion only if it can either (1) show that Dr. Blackburn can raise no material issue of fact as to one or more elements of her prima facie case, or (2) produce a legitimate, non-discriminatory reason for denying Dr. Blackburn tenure, and show that Dr. Blackburn cannot raise a material issue of fact as to whether the proffered reason is a pretext for discrimination. The court finds that Dr. Blackburn has preserved fact questions on all the elements of her prima facie case, but not on the issue of pretext.
3. Dr. Blackburn's prima facie case
"The burden of establishing a prima facie case of disparate treatment is not onerous." Burdine, 450 U.S. at 253. See also Marzano v. Computer Science Corp. Inc., 91 F.3d 497, 508 (3d Cir. 1996) ("[t]he evidentiary burden at this stage is rather modest"); Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1993) ("the prima facie case is easily made out"); Weinstock, 224 F.3d at 42 ("at the prima facie stage," plaintiff has a " de minimis burden of proof"). Despite Seton Hall's rigorous arguments to the contrary, Dr. Blackburn has put forward enough evidence to establish a prima facie case for discrimination.
Seton Hall does not contest that as an African American woman, Dr. Blackburn is a member of two protected classes. She thus doubtlessly fulfills the first element of a prima facie case.
In the context of an academic tenure case, in order to fulfill the second element — i.e., that she was qualified but nevertheless rejected for the position she sought — Dr. Blackburn
need only show that [she] was sufficiently qualified to be among those persons from whom a selection, to some extent discretionary, would be made. That is, [she] need show only that [her] qualifications were at least sufficient to place [her] in the middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise of discretion by the tenure-decision making body.Roebuck, 852 F.2d at 726. "The middle group" for prima facie case purposes "is the group whose members' bids for advancement are debatable." Bennun v. Rutgers State University, 941 F.2d 154, 176 (3d Cir. 1991).
A review of Dr. Blackburn's record and the evaluations of those who participated in her tenure review indicates that she falls into this group. As noted, qualifications for tenure at Seton Hall are achievement in teaching, service and scholarship. Overall, during her time at the university, Dr. Blackburn shouldered a wide variety of teaching responsibilities, and undeniably served the university and community in many ways, though she was sometimes criticized for concentrating her departmental service efforts in the African American Studies Department to the detriment of the English Department. Though she did not publish in peer-reviewed journals during her time at Seton Hall, Dr. Blackburn did present copious lectures and conference papers to professional organizations between 1994 and 2000. According to the Faculty Guide, such publications are considered "scholarship," though they do not carry as much weight in an assessment of scholarship as published works do. Even if this were not true, the Faculty Guide does not indicate (as Seton Hall seems to imply that it does) that a complete lack of published scholarship would per se render a candidate unqualified for tenure if she showed achievement in the other two areas.
The Court of Appeals has indicated that, to determine whether a tenure candidate's "qualifications were at least sufficient to place [her] in the middle group of tenure candidates," in addition to independently reviewing the candidate's application, a court should also look to the evaluations of the reviewers on the various committees that considered the candidate's application. Bennun, 941 F.2d at 173-75. Mere disagreement among those who review it about the merits of the tenure application is usually enough to establish that the candidate was qualified for the purposes of a prima facie case. Id., 941 F.2d at 171, 176 ("disagreement about the scholarly merits of the candidate's academic work . . . will satisfy the . . . hurdle of establishing the qualifications of the professor"). See also Ezold, 983 F.2d at 523 ("dispute over qualifications" sufficient to establish "plaintiff's prima facie hurdle of establishing qualification"). There was indeed disagreement among reviewers about whether Dr. Blackburn had earned tenure, though concededly information that has come to light in the context of this lawsuit has diluted the significance of two of the votes her application received, including the vote that determined the entire African American Studies Department's support of her application. See supra Section I(D) of this Opinion.
Seton Hall argues vigorously that Dr. Blackburn has not produced evidence to prove she was qualified for tenure, pointing to the fact that, among reviewers, those (individual reviewers and reviewing bodies) voting against Dr. Blackburn vastly outnumbered those voting for her. Certainly, in cases in which the court has found a tenure candidate "qualified" on the basis of disagreement among the reviewers, the disagreement has been far more symmetrical.
As discussed supra, the African American Studies Department and a small minority of the members of the English Department, the College Committee and the University Committee voted in favor of Dr. Blackburn's application, while the Dean, the Provost and large majorities of the English Department, the College Committee and the University Committee voted against her application.
For example, in Bennun, the candidate's department supported his application and the Dean concurred each time he applied for tenure; it was only the Appointments and Promotions Committee and the University-wide group of faculty members who voted against his application. 941 F.2d at 160-162. Similarly, inRoebuck, the candidate's application was unanimously supported by a committee of faculty members from his own department, and several external reviewers were favorably impressed with his work; it was the other reviewers (the department chair, the collegial committee, the Dean and the Vice President) who voted to deny the application. 852 F.2d at 721-724.
Nevertheless, the court is hesitant to find that Defendants have eliminated all fact questions on this issue of Dr. Blackburn's qualification for the position she sought (1) because there was some disagreement among Dr. Blackburn's reviewers, (2) because the prima facie case is not intended to be "onerous," and especially (3) because in cases involving a dispute over "subjective" qualifications, the Court of Appeals has often extolled the wisdom of deferring consideration of the qualification issue until the second or third step of the McDonnell Douglas analysis. See, e.g., Matczak v. Frankford Candy and Chocolate Company, 136 F.3d 933, 939 (3d Cir. 1997). In other words, the court is not comfortable finding that Dr. Blackburn was unqualified largely on the basis of the reviewers' opinion that she was unqualified, when it is those very reviewers whom Dr. Blackburn is accusing of discrimination.
See also Ezold, 983 F.2d at 523; Weldon v. Kraft, 896 F.2d 793, 798 (3d Cir. 1990); Fowle v. C C Cola, 868 F.2d 59, 64-65 (3d Cir. 1989); Bennun v. Rutgers, 737 F. Supp. 1393, 1401 n. 6 (D.N.J. 1990), aff'd in part and rev'd in part on other grounds, 941 F.2d 154 (CA 3 1991) (a defendant university's argument that because tenure candidate was not promoted, he was not qualified and therefore, by extension, could not meet the requirements of the prima facie case, if accepted, "would effectively shield Universities from scrutiny in that anyone denied promotion could never establish a prima facie case").
The court has accordingly deferred consideration of some of Dr. Blackburn's arguments regarding her qualifications until the "pretext" phase of the McDonnell Douglas analysis.
For these reasons, the court holds that a reasonable jury could conceivably find that Dr. Blackburn "qualifications were at least sufficient to place [her] in the middle group of tenure candidates as to whom both a decision granting tenure and a decision denying tenure could be justified as a reasonable exercise of discretion by the tenure-decision making body."Roebuck, 852 F.2d at 726. Dr. Blackburn has thus preserved a fact question on the issue of her qualification for the position she sought.
Within the Third Circuit, the third element of a prima facie case — i.e., that nonmembers of the protected class were treated more favorably — has a special meaning in the tenure context.
[B]ecause of the uniqueness of the tenure decision, in that an unsuccessful candidate is not necessarily replaced by a successful one, the third prong of the prima facie showing can be satisfied by showing that tenure positions "were open at the time plaintiff was denied tenure, in the sense that others were granted tenure in the department during a period relatively near to the time plaintiff was denied tenure."Roebuck, 852 F.2d at 726; Harel v. Rutgers, 5 F. Supp. 2d 246, 270 (D.N.J. 1998); Hayne v. Rutgers, Civ. A. No. 83-4913 (JCL), 1989 WL 106031 at *8 (D.N.J. Aug. 10, 1989).
The Court of Appeals in Bennun appears to have interpreted the third element of the prima facie case as requiring that nonmembers of the protected class who are similarly or less qualified than the plaintiff be treated more favorably. Consequently, it undertook a close examination of the tenure review process of such a nonmember of a protected class who was promoted in the same department in which the plaintiff in that case was denied promotion. See Bennun, 941 F.2d at 176-77.
Another panel of the Court of Appeals, and lowers courts within the Circuit, considering claims based on denials of tenure, however, consistently seem to interpret the third element to require only that any nonmember of the protected class be treated more favorably. See, e.g., Abramson, 260 F.3d at 282 (third element fulfilled merely because plaintiff "was terminated while other non-Orthodox Jewish professors were retained"); Harel, 5 F. Supp. 2d at 270 (third element fulfilled merely because "the University granted tenure to a non-Israeli member of his department"); Johnson v. Trenton State College, Civ. No. 83-3585, 1985 WL 6095 at *2 (D.N.J. Sept. 11, 1985) (third element fulfilled merely because "two other professional staff members in the Graduate Division [who were nonmembers of the protected class] were both relocated within the college while [plaintiff] was not"). The court will thus apply the less demanding interpretation of the third requirement of the prima facie case.
Dr. Blackburn easily fulfills this element. The Seton Hall English Department granted Dr. Gray, who is a white man, tenure in the Spring 1998 semester — two years before Dr. Blackburn was denied tenure. JG Dec ¶ 6. White female English Department professors Angela Jane Weisl ("Dr. Weisl") and Dr. Balkun were similarly granted tenure by the English Department in the Spring 2001 semester — one year after Dr. Blackburn was denied tenure. AW Dec ¶ 7; MB Dec ¶ 4.
4. Seton Hall's proffered legitimate, non-discriminatory explanation for denial of Dr. Blackburn's application
Because Dr. Blackburn has maintained a genuine issue of fact as to each of the elements of her prima facie case, the burden shifts to Seton Hall to proffer a legitimate, non-discriminatory explanation for denying her tenure. Seton Hall asserts that it denied Dr. Blackburn's application because she did not publish while employed by the university. Seton Hall's burden at this stage is only one of production; the university "need not prove that the tendered reason actually motivated [its] behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff." Fuentes, 32 F.3d at 763. Nevertheless, Seton Hall has produced materials that lend credence to its proffered explanation by clearly demonstrating the following four propositions:
(1) It was generally understood among most of the members of the Seton Hall faculty and administration, though it was not stated explicitly in the Faculty Guide, that publishing in peer-reviewed journals was the sine qua non of tenure.
(2) Dr. Blackburn understood the importance of publishing to tenure. She conceded in her own Complaint that "[p]ublication is extremely important, and is often a key factor in obtaining tenure," and Seton Hall produced evidence (quoted in footnote 8) showing that supervisors and colleagues had reminded her often of the importance of publishing to tenure.
(3) Dr. Blackburn's lack of publications was noted prior to and contemporaneously with her denial of tenure. The lack had been noted with concern in some of Dr. Blackburn's annual evaluation forms prior to her application for tenure. Every single individual who voted against her tenure application noted on their ballots that her lack of published scholarship was either the primary justification, or one of the few major justifications, for their votes.
(4) Other English Department faculty members who were tenured the year after Dr. Blackburn was denied tenure had all published a significant amount of work while at Seton Hall and before receiving tenure. One of these professors was denied tenure the first time she applied (the same year as Dr. Blackburn) on the ground of insufficient scholarship, even though at that time she had published more during her time at Seton Hall than Dr. Blackburn had when she was denied tenure. See AW Dec ¶¶ 10-12 and attached curriculum vitae.5. Dr. Blackburn's arguments that Seton Hall's explanation is pretextual
Between the time Seton Hall hired Dr. Balkun and the time she was promoted and granted tenure, she had published three articles in — and had two more articles accepted for publication by — peer reviewed journals. MB Dec ¶ 6. Within the same time frame, Dr. Weisl had published one book, co-edited a collection of essays and published three refereed book chapters. AW Dec ¶ 9.
In the face of all of this evidence, Dr. Blackburn maintains that her lack of publications is "a pretext for the real reason Seton Hall denied her tenure, which was because she was an African-American woman." Dr. Blackburn's Opposition Brief at 16. To defeat the motion for summary judgment, Dr. Blackburn "must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes, 32 F.3d at 764.
Dr. Blackburn makes four principal arguments in support of her position that Seton Hall's legitimate non-discriminatory explanation is pretextual. First, she argues that Seton Hall's assertion that it denied her tenure because she had not published is dubious because it violates the university's own tenure standards by failing to give the lectures and conference papers Dr. Blackburn delivered the weight they deserve. Under the Faculty Guide, lectures and conference papers qualify as scholarship, and Dr. Blackburn argues that because she did present lectures and conference papers between 1994 and 2000, Seton Hall could not find her scholarship insufficient based on her undisputed lack of publications.
Dr. Blackburn's lectures and conferences papers were enough to help preserve a fact question on the issue of whether a jury could find Dr. Blackburn qualified as part of her prima facie case, but their existence does not show that Seton Hall violated the university's standards by denying Dr. Blackburn tenure, and thus that its asserted non-discriminatory explanation is pretextual. The Faculty Guide does indicate that lectures and conference papers are one kind of evidence of scholarship or research, but nowhere does it declare that those things, in the absence of published work, are per se sufficient to warrant tenure. The Seton Hall reviewers, by the terms of the university's policy as iterated in the Faculty Guide, were entitled to decide that Dr. Blackburn's lack of published scholarship made her unworthy of tenure, so long as discrimination played no role in that decision.
Both plaintiff and Defendants urge the court to read the Seton Hall Faculty Guide as containing far more specific guidelines than the language of the guide warrants. Defendants imply that the Faculty Guide provides that no candidate could attain tenure without a publication in a peer-reviewed journal, while plaintiff implies that the guide waives the publication requirement if a candidate has presented lectures and conference papers. In reality, the Faculty Guide merely instructs reviewers to evaluate a candidate's scholarship, taking into account evidence submitted (including lectures and papers presented to professional organizations), and giving more weight to published material than unpublished.
Dr. Blackburn clearly disagrees with the reviewers' judgment call, but "[i]t is not enough for a plaintiff to show that the employer's decision was wrong or mistaken, because the issue is whether the employer acted with discriminatory animus."Abramson, 260 F.3d at 283. "For a plaintiff to succeed in carrying the burden of persuasion, the evidence as a whole must show more than a denial of tenure [or promotion] in the context of disagreement about the scholarly merits of a candidate's academic work." Bennun, 941 F.2d at 171 (quoting Molthan v. Temple University, 778 F.2d 955, 962 (3d Cir. 1985)). "It is important to reemphasize that the court's task is not to decide whether plaintiff deserved to be granted tenure, or whether it was a good or bad decision to deny her tenure." McFadden v. State University of New York, College at Brockport, 195 F. Supp. 2d 436, 452 (W.D.N.Y. 2002). Its task is to determine if a reasonable jury could find that discriminatory animus motivated the employment action in question.
Dr. Blackburn next argues that Seton Hall's proffered legitimate non-discriminatory explanation for denying Dr. Blackburn tenure is pretextual because the tenure review process was marred by another instance of race-based discrimination, and this indicates that improper motivations were in general afoot during that process. Specifically, she alleges that the College and University Committees were obliged to give more weight to the African American Studies Department's evaluation of her application (and that Department's standards, which as mentioned in footnote 10 may have stressed publication less than other departments) than the English Department's evaluation because African American Studies was Dr. Blackburn's "primary department" in which she had "governance rights." Dr. Blackburn's Opposition Brief at 9-12. The fact that those committees ultimately concurred with the English Department's recommendation, Dr. Blackburn maintains, indicates that they did not give appropriate weight to the African American Studies Department's recommendation that her application be granted. This was discriminatory because the only person behind the African American Studies Department's recommendation was Dr. Sales (a black man) and the English Department was composed solely of white members.
The only recommendation "that meant anything to the various tenure and review committees at Seton Hall University was that of the English Department, which only employed white faculty members," Dr. Blackburn claims. Dr. Blackburn's Opposition Brief at 14.
This argument Fails because (1) that African American Studies was Dr. Blackburn's primary department in which she had "governance rights" does not necessarily indicate that the recommendation of that department should have been given more weight in Dr. Blackburn's tenure review process, (2) even if it did, the College and University Committees' concurring with the English Department does not necessarily indicate that they accorded the English Department's recommendation more weight, and (3) even if the fact that African American Studies was Dr. Blackburn's primary department meant what Dr. Blackburn claims it does, the value of that department's support for Dr. Blackburn's application has been seriously undermined by Dr. Sales' later statement that that support was based in part on his reliance on "misinformation," and admission that he had an ulterior motive for supporting the application. See supra Section I(d) of this Opinion.
Neither "primary department" nor "governance rights" is defined in the Faculty Guide, but their use in that volume seems to make their meaning clear, and no information has been submitted to the court — by affidavit, deposition transcript, or otherwise — that would cast doubt on the apparent meaning of these terms.
Article 3 of the Faculty Guide indicates that "[a] faculty member on a joint appointment shall not ordinarily teach more than one-half of the normal teaching load outside the primary department or college." This indicates to the court that the designation "primary" refers to teaching obligations; when a department is designated as "primary" to a jointly appointed faculty member, it means that that faculty member is to teach half or more of the classes she teaches overall in that department.
Article 3 also indicates that "[a] faculty member's rights as to governance apply only to the primary department." Article 10 of the Faculty Guide is entitled "Department Governance" and deals with the method of selection, term, responsibilities and duties of the chairperson of the department. This indicates to the court that when Dr. Blackburn's appointment letter declared that she would have "governance rights" in the African American Studies Department, it meant that she would have the right to vote for and to attempt to become chairperson of that department, as opposed to the English Department, within which she would not have these rights. It does not appear to the court to mean that the African American Studies Department's evaluation of Dr. Blackburn should have governed ultimately in Dr. Blackburn's process of tenure review. The governance rights accrued to Dr. Blackburn, not the department.
They could easily have just been more persuaded by the English Department's evaluation (which was the product of many individuals' reactions) than by the African American Studies Department's evaluation (which was the product of only Dr. Sales' reaction). In any event, the extensive comments committee members wrote on their ballots indicate they they each performed an independent review of Dr. Blackburn's application rather than relying blindly on the recommendation of the English Department.
Dr. Blackburn next points to another instance of what she alleges is institutional racism in arguing that discrimination rather than a legitimate reason motivated denial of her tenure application: the fact that the English Department voted against her predecessor Margo Banks and, initially voted against Banks' successor Ives Auguste. This fact, while not insignificant, is not enough to carry Dr. Blackburn's burden in light of, inter alia, the facts that (1) the English Department ultimately did grant tenure to Auguste, even though it reportedly took a minor intervention on Miller's part to make that happen, (2) Dr. Blackburn has not submitted any admissible evidence about Banks' qualifications for tenure, or the circumstances of her application being denied, that would enable a meaningful consideration of the fact of her tenure denial, and (3) the strength of the legitimate non-discriminatory explanation Seton Hall has submitted for denying Dr. Blackburn's tenure.
Finally, Dr. Blackburn argues that what she alleges were individual acts of discrimination perpetrated against her by members of the Seton Hall faculty and administration between 1994-2000 (not all of which are recounted in this Opinion) give rise to the inference that denial of her tenure application was also motivated by discrimination. This claim fails, however, because Dr. Blackburn offers no evidence whatsoever that any of the individual acts she cites were themselves motivated by discriminatory animus.
For example, Dr. Blackburn has offered no evidence that her race or gender had anything to do with Dean Van Oosting's allegedly saying in the presence of others who would vote on her application that Dr. Blackburn should not have been hired in the first place and that her application was fraudulent (which he denies).
She also has failed to bring forth sufficient evidence that her race or gender had anything to do with Dr. Sales' assigning her to a cluttered "office that was a little larger than a coffin [and] had no windows," asking her to organize a conference on her own (when he had hired someone to help a male faculty member organize a conference), attending conferences with male faculty members which he had not told her were occurring, and co-authoring an article with a male faculty member. RB Dep at 42-52. In fact, Dr. Blackburn herself concedes that there were commonsense justifications for some of the incidents involving Dr. Sales. For instance, she acknowledged that the two larger offices in the department were already occupied when she arrived at Seton Hall and that she would not have expected either of the professors who occupied them to give his office to her once she arrived. RB Dep 51-52.
As none of Dr. Blackburn's arguments and none of the evidence she submitted demonstrate that Seton Hall's proffered explanation for denial of tenure to Dr. Blackburn was a "mechanism to obscure discrimination," Kunda, 621 F.2d at 548, Seton Hall is entitled to summary judgment on this claim.
* * * *
Dr. Blackburn has brought her discriminatory denial of tenure claims under the NJLAD and § 1981 not only against Seton Hall, but also against Provost Rocha, Dean Van Oosting, Dr. Sales, Dr. Grieco, Dr. Carpentier, Ene, and Hill in their individual capacities. Because the court finds that no fact question exists as to whether Seton Hall discriminated against Dr. Blackburn, it follows that the individual defendants cannot be found liable.
The New Jersey Supreme Court has not specifically addressed the question of whether individuals may be found liable under the NJLAD. While the Court of Appeals has not been willing to predict that the New Jersey Supreme Court will impose liability on individuals as "employers" under § 10:5-5(a), Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 125 (3d Cir. 1999), it has predicted that the New Jersey Supreme Court will, under § 10:5-12(e), impose liability on individuals using an aiding and abetting theory. Failla v. City of Passaic, 146 F.3d 149, 158 (3d Cir. 1998). Individuals may be found liable for aiding and abetting a violation of the NJLAD, however, only if that predicate violation has been established. Id. at 159 ("it is fundamental to aiding and abetting liability that the aider and abettor acted in relation to a principal . . . Once the [principal] has been found liable, the issue becomes whether under § 12(e), any employee is liable for aiding and abetting."). Because the court found that the Seton Hall (the principal) is entitled to summary judgment on the discriminatory denial of tenure claim, the individual defendants are obviously entitled to summary judgment on the claim of aiding and abetting that denial.
NJLAD § 10:5-12(e) provides that "It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination . . . [f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so."
Individual members of a tenure committee may be found personally liable for a discriminatory denial of tenure under § 1981 if they are "personally involved in the discrimination against [the plaintiff], and if they intentionally caused the College to infringe on [plaintiff's] Section 1981 rights, or if they authorized, directed, or participated in the alleged discriminatory conduct." Al-Khazraji v. Saint Francis College, 784 F.2d 505, 518 (3d Cir. 1986). Because the court finds that Seton Hall did not infringe Dr. Blackburn's § 1981 rights, the individual defendants obviously cannot be found personally liable for an infringement.
III. Claim that Dr. Blackburn was "set up to fail"
In the context of her discriminatory denial of tenure claim, Dr. Blackburn at several points advances the distinct argument that Defendants "set her up" to fail, or put her in a position from which she could not possibly fulfill the requirements for tenure. Specifically, Dr. Blackburn argues that she failed to produce publishable scholarship — the failure that cost her tenure — only because she was assigned such a heavy courseload that she had no time to research and write, because her repeated requests for release time to work on her scholarship were always denied, and because she was inadequately mentored by the chairs of the English and African American Studies Departments. This argument does not challenge Dr. Blackburn's denial of tenure so much as it challenges the series of discrete employment actions that she alleges led to that denial (assignment of excessive courseload, denials of requests for release time, inadequate mentoring).
Defendants are entitled to summary judgment on all three of these challenges because (a) the record clearly shows that Dr. Blackburn was not assigned a heavier-than-average courseload, (b) Dr. Blackburn has not adequately rebutted Seton Hall's proffered legitimate reasons for Dr. Blackburn being granted less release time than her white counterparts, and (c) Dr. Blackburn's expectations regarding the mentoring to which she was entitled were unreasonable.
A. Courseload
Seton Hall requires full-time faculty to teach twenty-four credit hours (one class is normally assigned three credit hours) and six course preparations per academic year. Faculty Guide 7.3 (a) and (b) (1). This means that in an average year a faculty member would be expected to teach four classes per semester — three distinct classes and one additional section of one of those classes. WS Dep at 11-12. A faculty member may teach and be paid extra for a fifth course (an "overtime assignment") in any given semester. Faculty members may also teach independent study courses, but because these do not ordinarily meet regularly, they do not count as separate course preparations. Faculty Guide 7.3 (b)(1).
Grade rosters submitted by Seton Hall clearly indicate that during her time at the university, Dr. Blackburn taught the usual three course preparations and four classes every semester except Fall 1997, during which she carried an unusually heavy load: four course preparations and an independent study. Because the fifth obligation Dr. Blackburn had that semester was an independent study as opposed to a full class, it is not accurate to state — as Dr. Blackburn has in her Complaint and elsewhere — that she taught five courses. The record thus reveals that Dr. Blackburn carried an average courseload at Seton Hall. B. Release time
Even judging by the number of students enrolled in her courses (rather than the number of courses and course preparations), Dr. Blackburn's workload was not as extreme as she claims. In general, Dr. Blackburn's workload in her African American Studies courses — in terms of number of students and number papers to grade — "was not particularly heavy." WS Dec at 46. In fact, as suggested above, the low enrollments in Dr. Blackburn's African American Studies courses were a source of concern for members of the faculty as early as 1995. In the English Department evaluation of Dr. Blackburn for that year, for example, Dr. Grieco wrote "In last year's evaluation I stated that `Dr. Blackburn has agreed to recruit students for her African-American courses by advertising and discussion. It seems a pity that with a specialist such as she, these classes still suffer from low enrollments."
It may be true that Dr. Blackburn taught basic English skills classes (which draw many students and thus produce a significant paper-grading burden) more frequently than other professors in the English Department. Dr. Blackburn concedes, however, that these were the classes in the English Department that she was hired principally to teach. RB Dep at 275-76, 424-26. The letter she sent to Dr. Sales indicating her interest in the position at Seton Hall specifically mentioned her experience in teaching Freshman Composition, and her interview presentation to the English Department "dealt with basic skills." RB Dep at 276.
The record does show that Dr. Blackburn was granted less release time than other professors. Seton Hall asserts that this is true because Dr. Blackburn did not carry the administrative responsibilities that the other professors were given release time to fulfill, and had given no indication that she would use release time to produce publishable scholarship. Dr. Blackburn has not introduced evidence sufficient to preserve a fact question on whether these justifications are pretextual.
At Seton Hall, a Department may recommend to the Dean that a faculty member be granted release time to allow the faculty member to (1) supervise special academic programs, (2) prepare new programs of substantial scope, or (3) pursue unusual academic or research assignments. Faculty Guide 7.5 (a). Faculty requests for release time cannot always be granted. As Dean Van Oosting explains,
The grant of release time to a faculty member impacts upon the University in that the Department must find a replacement to teach the course from which the faculty member is released. There are also budgetary concerns in that the grant of release time releases a faculty member earning an annual salary from certain of his or her teaching responsibilities. Those teaching responsibilities must, naturally, still be performed, Hence, the grant of release time sometimes results in extra expenditures associated with finding a replacement for the faculty member in question. In light of the impact which the grant of release time has upon the University and the annual operating budget, requests for release time cannot always be granted.
JVO Dec at ¶ 7.
Professor Dr. Blackburn was granted release time at least once — in Fall 1996; she submitted requests for release time on numerous other occasions, but they were all denied. Several times when she asked Dr. Sales for release time from one of her African American Studies classes, he told her that she "was the only one teaching African American Literature" so she should ask for release from an English class instead. But when she asked Dr. Grieco for release time from one of her English classes, Dr. Grieco told her to ask Dr. Sales because he was the Chair of her "home department." RBIA at 8-9.
During the time that Dr. Blackburn was a professor at Seton Hall, other untenured English professors (all of whom were eventually granted tenure) were granted significant release time in order to attend to administrative responsibilities for which they had volunteered and subsequently been appointed. Dr. Blackburn never volunteered for any administrative position, CG Dep at 34-35. Indeed, her lack of significant participation in English Department administration was consistently noted in her annual reviews by Dr. Grieco.
Dr. Balkun was granted six credits of release time each semester from Fall 1996-Spring 2001 to fulfill her extensive duties as Director of Freshman English and Assistant Chair of English Department. MB Dec at ¶ 16. Dr. Weisl was granted three credits of release time from the Fall 1996 semester through the Fall 1998 semester to perform her duties as an undergraduate academic advisor, and three credits of release time in the Fall 1999 semester to perform her duties as a graduate academic advisor. AW Dec at ¶ 4. Dr. Gray was granted three credits of academic release time (despite the fact that he had requested six) per academic semester to perform the administrative duties of Director of Poetry In the Round. JG Dec at ¶ 10.
In her second year evaluation of Professor Dr. Blackburn Dr. Grieco noted that Professor Dr. Blackburn was a member of the Department's Basic Skills Committee and faculty advisor to the Black Students Union, but commented that she "hope[d] [Dr. Blackburn would] volunteer more actively in college and university committees." Dr. Grieco made similar comments in her 1998 and 1999 annual reviews of Professor Dr. Blackburn. 1998 review ("The English Department would like to see Dr. Blackburn become more fully involved in our work, more active in Departmental affairs"); 1999 review ("One of the areas that Dr. Blackburn can improve in is membership and participation in our basic skills and/or College English Committees").
Two of the other untenured English professors were also granted limited release time in order to pursue their individual scholarship. Dr. Weisl was granted three credits one semester to meet a book contract deadline with a publisher who had already accepted her book. AW Dec ¶ 13. Dr. Gray was granted release time during two semesters to work on four projects; in his requests for the release, he not only identified the projects he would work on during the time off, but updated Dr. Grieco on the progress he had made during previous periods of release time. JG Dec ¶¶ 14-15. In his Declaration, van Oosting notes that
when a proposal and/or request for release time is in any way related to research assignments and/or scholarship, the Dean must be relatively confident that the release time will, in fact, result in publishable material. To that extent, the productivity displayed by a faculty member during a prior occasion of release time may very well influence the action taken relative to a subsequent request for release time. Similarly, the likelihood of a grant of release time for purposes of working on one's research and/or scholarship is strengthened when the faculty member reports that he or she has a contract with a publisher and/or has publishing deadline to meet.
JVO Dec ¶ 9. Dr. Blackburn did not publish anything during her semester of release time, nor before or after it. Defendants argue that this factor influenced those with decision power in denying her requests for release time, as demonstrated by one of Dr. Blackburn's requests for release time (submitted by Defendants) on which Dr. Grieco had written "the research time given for the previous semester has thus far yielded no results: Denied." Dr. Blackburn has not submitted evidence that would preserve a genuine issue of material fact on her assertion that she was without legitimate justification given less release time than her white counterparts.
C. Mentoring
Dr. Blackburn's remaining support for her contention that she was set up to fail is the argument that Dr. Sales and Dr. Grieco provided her with inadequate mentoring. This argument is unavailing.
First, it is doubtful whether failure to mentor is an actionable employment action at all in this context. As the Maryland District Court has noted
Disappointment [at the absence of good mentoring] cannot be characterized as denial of a term, condition, or privilege of employment. Congress simply cannot legislate that all employment relationships enjoy the best communication or provide the most rewarding learning experience. Title VII can only mandate that employees receive the basic components of the position."Jensvold v. Shalala, 925 F.Supp. 1109, 1114 (D. Md. 1996).
Second, the facts Dr. Blackburn presents demonstrate that her apparent expectations about the type of guidance she would receive were simply not reasonable. For example, no reasonable fact-finder could conclude that Dr. Sales' refusing to co-author an article with Dr. Blackburn, or Dr. Grieco's failing explicitly to offer her the opportunity to volunteer for an administrative position, or encouraging her to write a novel, RB Dep 223-224, without expressly telling her that publishing the novel alone would be insufficient to earn her tenure, CG Dec at ¶ 13, were acts of discrimination or violations of the duties a departmental chair owes a new hire.
Even if Dr. Grieco had told Dr. Blackburn that publishing a novel would be sufficient to earn her tenure, the issue is moot because Dr. Blackburn's novel was never accepted for publication (in fact, she never finished writing her novel). RB Dep at 224. Even if neither of these things were true, Dr. Blackburn was informed many times by colleagues that publishing in peer-reviewed journals was important to tenure and was informed in her 1994 appointment letter that the standards for tenure were described in the Faculty Guide. Had she taken it upon herself to review this document (which she did not until the Spring 1999 semester, RB Dep at 129), she would have been aware of Seton Hall's emphasis on peer-reviewed journal articles — an emphasis, shared throughout the academy, of which Dr. Blackburn must certainly have been aware more than twenty years after receiving her PhD.
The Court of Appeals itself has previously acknowledged that "[i]n the academic world, it is considered significantly more prestigious to have one's work published in a refereed journal" than elsewhere. Roebuck, 852 F.2d at 718 n. 2. The notion that in academia one must "publish or perish" is a truism. No reasonable fact-finder could conclude that an academic of Dr. Blackburn's level of sophistication was not aware of the publication requirement for tenure.
* * * *
For these reasons, Dr. Blackburn has failed to maintain a fact question on her allegation that Seton Hall prevented her from becoming qualified for tenure. This is not to deny that Dr. Blackburn's situation was more challenging than those of many of her peers, and that tenure was thus for her a more elusive goal. It is apparent from the record that Dr. Blackburn's being jointly appointed to two departments might have created a situation where she was asked to "spread herself too thin."For example, though decisions to grant release time seem to have hinged largely on the presence or absence of a candidate's administrative responsibilities and scholarly projects in the works, the fact of Dr. Blackburn's joint appointment likely played some role in her receiving less release time than she would have ideally wanted. The record shows that each of her departments wanted release time for Dr. Blackburn taken from her work in the other department since the function she performed in each department (teaching remedial courses in English and teaching the only African American literature courses) was so essential that she was — to an extent greater than professors appointed to only one department — indispensable.
Further, the complaints in her annual evaluations that Dr. Blackburn was not making herself "available" to the English Department were probably not entirely fair given that she was expected to make herself "available" to two departments in a way that professors appointed to only one department only were not. It was not possible for Dr. Blackburn to be in two places at once. All of these demands likely made it dificult for Dr. Blackburn to cultivate eligibility for tenure.
Seton Hall has apparently learned its lesson on this point: the professor hired to replace Dr. Blackburn was appointed solely to the African American Studies Department.
Dr. Blackburn, however, has simply has not provided evidence that could persuade a jury that her experience as a jointly appointed professor — or the fact of her joint appointment instead of appointment to a single department — was due to race or gender. "In a disparate treatment case, liability depends on whether the protected trait . . . actually motivated the employer's decision . . . [A] disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in [the employer's decision-making] process and had a determinative influence on the outcome." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).
IV. Hostile work environment claim
Dr. Blackburn claims that Defendants subjected her to a hostile work environment in violation of Title VII, the NJLAD and § 1981. The court finds that all Defendants are entitled to summary judgment on this claim.
Unlike her discriminatory denial of tenure claim, Dr. Blackburn's hostile work environment claim under Title VII is not time-barred, because a Title VII hostile work environment claim is timely as long as the employee filed "a charge within 180 or 300 days of any act that is part of the hostile work environment." National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 118 (2002) (emphasis added). The last act that Dr. Blackburn claims contributed to the hostile work environment (Dr. Carpentier's assigning the African American Literary Experience class to Dr. Balkun) occurred in Fall 2000 — well within 300 days of Dr. Blackburn's filing with the EEOC on February 2, 2001. Moreover, Dr. Blackburn filed suit less than 90 days after she received the EEOC's second right to sue letter (proof (if it ever existed) that the first right to sue letter was sent — and returned by the Post Office undelivered — disappeared when the building housing the EEOC New York District Office was destroyed during the attacks that occurred on September 11, 2001). Because her claim is not time-barred, the court may consider it on the merits.
An employer can violate Title VII not only by engaging in discrete discriminatory employment acts, but also by requiring employees to work in a discriminatorily hostile or abusive environment. "When the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986).
To establish a claim under Title VII for race- or gender-based hostile work environment, a plaintiff must show: (1) that he or she suffered intentional discrimination because of race; (2) that the discrimination was pervasive and regular; (3) that the discrimination detrimentally affected the plaintiff; (4) that the discrimination would detrimentally affect a reasonable person of the same race or sex in that position; and (5) the existence of respondeat superior liability. Cardenas, 269 F.3d at 260;Aman v. Cort Furniture Rental Corporation, 85 F.3d 1074, 1081 (3d Cir. 1996) (race); Suders v. Easton, 325 F.3d 432, 441 (3d Cir. 2003) (gender).
The standard for establishing a prima facie case of hostile work environment is the same under § 1981, Manatt v. Bank of America, 339 F.3d 792, 797-99 (9th Cir. 2003); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000), and almost the same (all prongs except the fifth) under the NJLAD, Abramson, 260 F.3d at 277 n. 7. Thus, if Dr. Blackburn establishes a prima facie case under Title VII, she will have also shown the elements required by § 1981 and the NJLAD.
To determine whether discriminatory animus motivated the conduct (the first element of a prima facie case), the court considers not only actions and comments that explicitly reference race and gender, but also those that do not because
the advent of more sophisticated and subtle forms of discrimination requires that [courts] analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment, in evaluating a hostile work environment claim.Cardenas, 269 F.3d at 261-62 (citing Durham Life Insurance Company v. Evans, 166 F.3d 139, 148-49 (3d Cir. 1999) andAman, 85 F.3d at 1081-84).
To determine if the discrimination was sufficiently pervasive or severe to make the environment "hostile" or "abusive" (the second element of a prima facie case) the Supreme Court has emphasized that lower courts must look
at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
At oral argument, Dr. Blackburn's attorney specified the incidents that, taken together, constituted what Dr. Blackburn alleges was a hostile work environment: (1) the EOP incident, (2) Dr. Carpentier's assignment of the African American Literary Experience class to Dr. Balkun, (3) the omission of Dr. Blackburn's name from the English Department brochure, (4) Dr. Grieco's 1996 request that Dr. Blackburn "show her color" around the English Department, (5) Dr. Grieco's statement that Dr. Blackburn's organization of the Beloved outing "had nothing to do with the English Department," (6) Dr. Grieco's docking Dr. Blackburn a portion of her stipend when she left an English Department workshop early to chaperone students attending the Million Woman March, (7) Dr. Grieco's refusing to tell Dr. Blackburn where her class was located and then yelling at her when she was consequently late for class, and (8) Dr. Grieco's failure to give Dr. Blackburn a desk or office in the English Department.
Dr. Blackburn claims that before Seton Hall hired her, McPhee told members of the English Department that she "did not work well with white people." The court will not consider this comment as part of the allegedly hostile work environment Dr. Blackburn claims to have endured because it is based on inadmissible hearsay. Dr. Blackburn indicated in her answers to Defendants' interrogatories that she "knew" about this comment because Dr. Sales told her that McPhee told him that Dr. Angela Greene of Union County College told McPhee that "plaintiff did not work well with white people." RBIA at 15. In his Deposition, Dr. Sales did not confirm this account. WS Dep at 7-8.
Defendants have proffered legitimate explanations (discussed earlier in this Opinion) that Dr. Blackburn has not rebutted for some of these incidents — specifically (2) and (8). Dr. Blackburn herself has offered non-discriminatory explanations for (1) and (3). Defendants have either denied or failed to offer explanations for the remaining incidents.
Dr. Balkun was qualified to teach the African American Literary Experience and the Chair of the English Department believed Dr. Blackburn was not. There was an intense shortage of space in the English Department.
Dr. Blackburn asserts that her passing grades were changed to failing grades in the EOP program in order to retain state funding for the program, and that Dr. Grieco did not list her name in the English Department brochure because she (wrongly) believed Dr. Blackburn, as a joint appointee, was not full-time faculty.
Of these remaining incidents, one — Dr. Grieco's "show your color" remark — explicitly references race, and two others — Dr. Grieco's comments and conduct surrounding the Beloved premiere and the Million Woman March — relate to racially charged events. These incidents appear suspicious; a jury might be able to infer that racial animus motivated them and the facially neutral incident, i.e., (7). After reflection, however, the court concludes that even if these incidents were motivated by discriminatory animus, they were not severe and pervasive enough to justify denial of summary judgment. Dr. Grieco's comments and conduct — if they occurred as Dr. Blackburn claims they did — were clearly insensitive and seemingly mean-spirited. Nevertheless, they were not so frequent or severe that Dr. Blackburn's work environment could reasonably be perceived as hostile and abusive. V. Retaliation claim
For the same reason, Defendants are entitled to summary judgment on Dr. Blackburn's intentional infliction of emotional distress and negligent infliction of emotional distress claims. In New Jersey, a person states a cause of action for intentional infliction of emotional distress when he establishes "intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe." Taylor v. Metzger, 706 A.2d 685, 694 (N.J. 1998) (internal quotations and citations omitted). "The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community . . . The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Id. Negligent infliction of emotional distress, on the other hand, consists of "negligent conduct that is the proximate cause of emotional distress in a person to whom the actor owes a legal duty to exercise reasonable care." Decker v. Princeton Packet, Inc., 561 A.2d 1122, 1128 (N.J. 1989). To serve as the basis for a claim of negligent infliction of emotional distress, the distress a plaintiff suffers must be "severe." Dello Russo v. Nagel, 817 A.2d 426, 435 (N.J. App. Div. 2003). None of the Defendants behaved towards Dr. Blackburn in a way that fulfills either of these definitions.
Dr. Blackburn has also brought retaliation claims against Defendants under Title VII, the NJLAD and § 1981. Presumably, her theory is that when Defendants denied her tenure application, they were retaliating against her for accusing Dr. Grieco during her tenure review presentation of engaging in discriminatory conduct. Defendants are entitled to summary judgment on this claim as well.
The NJLAD makes it an unlawful employment practice "[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act." N.J. STAT . ANN. 10-5:12(d).
The Title VII claim is time-barred for the reasons discussedsupra. In order to establish a prima facie retaliation claim under the NJLAD and § 1981, Dr. Blackburn must show (1) that she engaged in a protected activity; (2) that she suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse employment action.Cardenas, 269 F.3d at 263.
Assuming for the sake of argument that Dr. Blackburn's tenure review presentation was protected activity and that Dr. Blackburn suffered an adverse employment action when she was denied tenure, Dr. Blackburn's claim still fails because she has not come forth with sufficient evidence of a causal connection between the two. As discussed in section II of this Opinion, Dr. Blackburn's lack of publications is a legitimate reason for Defendants denying her tenure. Dr. Blackburn was not able to maintain a fact question on whether or not that denial was pretextual; for the same reasons, she fails to preserve a fact question on the issue on whether or not the denial was retaliatory.
VI. Disparate pay claim
Dr. Blackburn has also brought a disparate pay claim against Seton Hall under Title VII, NJLAD § 10:5-12(a) and § 1981. Defendants are entitled to summary judgment on this claim, however, because Dr. Blackburn did not have enough of a basis in fact for making it.
Dr. Blackburn based her claim on an article that appeared in 1998 in the Seton Hall newspaper and indicated that the university was undertaking a study to determine if "discrepancies [existed] among full-time faculty salaries" along gender, race and ethnicity lines. Dr. Sales stated in his Deposition that, based on anecdotal evidence, "the general feeling was that . . . African American [faculty] were paid less than their white counterparts. That was the feeling. And the commission that was appointed was appointed to look into that . . . and to report out and to get some resolution of that question. That hasn't happened yet." WS Dep at 64-65.
Dr. Blackburn provides no facts or statistics other than those included in the article as a basis for her claim. She claims that she cannot "adequately defend her claim of salary inequity against the university," because Seton Hall "has not disclosed or provided in discovery any information concerning the salary levels of its employees." TA Cert at ¶ 12. As Defendants point out, however, not only did Dr. Blackburn not serve any discovery demands relating to salary, but "plaintiff must have some basis in fact to support a claim before engaging in discovery." Defendants Reply Brief at 8 n. 6. See Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College of Pennsylvania, 103 F.3d 294, 299 (3d Cir. 1996) ("discovery is not intended as a fishing expedition permitting the speculative pleading of a case first and then pursuing discovery to support it; the plaintiff must have some basis in fact for the action").
VII. § 1985, § 1986 and § 1988 claims
Dr. Blackburn has also brought claims under 42 U.S.C. §§ 1985, 1986 and 1988. Defendants are entitled to summary judgment on these claims as well.
Sections 1985(1) and 1985(2) are plainly inapplicable to Dr. Blackburn's lawsuit. The court thus assumes that she means to bring a claim under § 1985(3), which provides
If two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person . . . of the equal protection of the laws, or of equal privileges and immunities under the laws [and] if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is . . . deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
All of the named defendants in this suit are private actors. "In order successfully to bring an action under § 1985(3) for private conspiracy, a plaintiff must show, inter alia, (a) that a racial or other class-based invidious discriminatory animus lay behind the coconspirators' actions, (b) that the coconspirators intended to deprive the victim of a right guaranteed by the Constitution against private impairment, and (c) that that right was consciously targeted and not just incidentally affected." Brown v. Philip Morris Inc., 250 F.3d 789, 805 (3d Cir. 2001) (citations omitted) (emphasis added). In the context of actions brought against private conspirators, the Supreme Court has thus far recognized only two rights protected under § 1985(3): the right to be free from involuntary servitude and the right to interstate travel. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 278 (1993). Dr. Blackburn has not made any argument — or submitted any materials that would indicate — that Defendants took action to deprive her of her right to be free from involuntary servitude or her right to interstate travel. Her § 1985(3) claim thus fails as a matter of law.
Because her § 1985(3) claim fails, her § 1986 claim also necessarily fails. Clark v. Clabaugh, 20 F.3d 1290, 1295 n. 5 (3d Cir. 1994) ("transgressions of § 1986 by definition depend on a preexisting violation of § 1985 . . . if the elements of the § 1985 conspiracy are missing, a § 1986 cause of action is properly dismissed on summary judgment") (internal quotations omitted).
Section 1986 provides
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.
Section 1988 authorizes district courts to award a reasonable attorney's fee to prevailing parties in civil rights litigation. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). "Plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Truesdell v. Philadelphia Housing Authority, 290 F.3d 159, 163 (3d Cir. 2002) (citing Hensley, 461 U.S. at 433). As Dr. Blackburn has not prevailed on any of her claims in this lawsuit, she is not entitled to attorney's fees under § 1988.
It provides
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [ 20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [ 42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [ 42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [ 42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction.
CONCLUSION
For the foregoing reasons, the court grants Defendants summary judgment on all of Dr. Blackburn's claims against them.