Opinion
NO. 2013-CA-001721-MR
03-18-2016
ISAAC LARISON APPELLANT v. NORTHERN KENTUCKY UNIVERSITY; SUZANNE SOLED, CHAIR OF THE DEPARTMENT OF TEACHER'S EDUCATION AND SCHOOL ADMINISTRATION; MARK WASICKSO, DEAN, COLLEGE OF EDUCATIONAL AND HUMAN SERVICES; GAIL WELLS, VICE PRESIDENT OF ACADEMIC AFFAIRS AND PROVOST; and JAMES C. VOTRUBA APPELLEES
BRIEF FOR APPELLANT: Marc D. Mezibov Susan L. Butler Cincinnati, Ohio Michael J. O'Hara Suzanne Cassidy Crestview Hills, Kentucky BRIEF FOR APPELLEES: Michael W. Hawkins Drew B. Millar Kathleen A. Carnes Cincinnati, Ohio
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, JUDGE
ACTION NO. 11-CI-00626 OPINION
AFFIRMING BEFORE: DIXON, JONES, AND VANMETER, JUDGES. JONES, JUDGE: Issac Larison filed this action in Campbell Circuit Court after Northern Kentucky University ("NKU") denied his tenure application and issued him a terminal contract. Professor Larison alleged that: (1) NKU violated the Kentucky Civil Rights Act ("KCRA"), KRS 344.040(1), by denying him tenure because of his age; and (2) certain members of NKU's faculty and administration ("Individual Defendants") subjected him to arbitrary state action in violation of Section 2 of the Kentucky Constitution.
Kentucky Revised Statutes.
The individual defendants named by Professor Larison are as follows: Suzanne Soled, Mark Wasickso, Gail Wells, and James C. Votruba.
After concluding that there was no case law or statute authorizing either an express or implied private right of action under the Kentucky Constitution, the circuit court dismissed Professor Larison's claims against the Individual Defendants. Later, the circuit court granted NKU summary judgment on Professor Larison's age-discrimination claim after finding that Professor Larison had not produced any evidence from which a jury could reasonably doubt NKU's non-discriminatory basis for denying him tenure. This appeal followed.
Having thoroughly reviewed the record, we AFFIRM.
I. FACTUAL BACKGROUND
A. Tenure at NKU
An award of tenure results in a lifetime appointment after which NKU can remove the faculty member only in very limited circumstances. Although tenure is not based on any exact checklist or formula, NKU has developed certain procedures and requirements for hiring, evaluating and considering applicants seeking tenure.
Upon hire, NKU classifies faculty as either tenured track or non-tenured track. Employment contracts for tenured track faculty are issued yearly before the upcoming academic year. After the completion of each yearly appointment, a tenured track faculty member must reapply to maintain employment. A tenured track faculty member must apply for tenure by the end of his or her sixth year.
As part of the reapplication process, tenured track faculty members take part in an extensive yearly review process called the Reappointment, Promotion, and Tenure Review ("RP&T Review"). The RP&T Review generally begins in the fall of each academic year. Three chief areas are examined as part of the RP&T Review: teaching, scholarship, and service to the university. To begin the process, each candidate assembles a portfolio highlighting his or her achievements and progress in the three target areas. The portfolio is then reviewed at six different levels: 1) the RP&T Review Committee; 2) the Department Chair; 3) the College Dean; 4) the University Provost; 5) the University President; and 6) the University Board of Regents.
In the years preceding the final tenure application, each reviewer is charged with making one of three recommendations regarding the candidate's application: 1) reappoint; 2) non-appoint; or 3) reappoint with conditions to be removed, meaning that the reviewer believes that the candidate is making less than satisfactory progress towards tenure and needs to improve in one or more of the three target areas. Each reviewer has access to the prior reviews, but is not required to give any deference to or follow the recommendations made at the lower review levels.
During the year the candidate is seeking tenure, each reviewer decides whether to recommend the candidate be granted tenure. In so doing, the reviewers consider the candidate's entire career. The main criterion is whether the reviewer believes the candidate, if granted tenure, is likely to sustain a lifetime of excellence at NKU.
After the fourth-level review by the university provost, the candidate has the opportunity to file an internal appeal. The appeal process begins with the Peer Review Advisory Committee. The Peer Review Advisory Committee first decides whether the candidate has presented prima facie evidence sufficient to establish good cause to conduct a hearing regarding the fairness of the process. If the Peer Review Advisory Committee determines that the candidate has alleged a prima facie case, it refers the matter to the Peer Review Hearing Committee. The Peer Review Hearing Committee is charged with considering whether a tenure recommendation has been made in a fair and/or a reasonable manner. The Peer Review Hearing Committee issues non-binding findings following the hearing.
As the portfolio passes through the review process, the recommendations made by all prior reviewers are included for consideration at the next level. Additionally, any findings from the Peer Review Hearing Committee are included for consideration at the final two levels of review. While each reviewer is free to consider the recommendations made at the lower levels, the reviewer is not bound to follow those recommendations. The Board of Regents makes the final determination on the candidate. If the candidate is granted tenure, NKU grants the candidate a lifetime appointment. If a candidate is denied tenure, NKU issues a final one-year contract for the following academic year.
B. Additional Reviews at NKU
All non-tenured faculty members at NKU also participate in an annual review by the chairs of their respective departments, the Annual Performance Review. While the Annual Performance Review is also focused on scholarship, teaching and service to the university, it is more limited in scope than the RP&T Review. It focuses primarily on the performance of the faculty member during the prior year. It is not meant to be predictive of future success at NKU as is the RP&T Review. While a tenured track faculty member might include his or her yearly reviews in the portfolio package, the yearly reviews are not designed to be predictive of whether the faculty member is making satisfactory progress towards tenure.
These reviews are conducted even for faculty members that are not on the tenured track.
C. Professor Larison's Career at NKU
Professor Larison began at NKU in 2006 as a tenured track faculty member in the Department of Teacher Education, which is part of the College of Education and Human services. He was fifty years old at the time of his hire. Prior to being hired at NKU, Professor Larison worked at Xavier University. As part of his contract negotiations with NKU, Professor Larison successfully requested that NKU give him two years of service credit based on his prior years of teaching so that he would be eligible to seek tenure at NKU after his fourth year.
Professor Larison's first RP&T Review occurred during the 2006-2007 academic year. On this first review, Professor Larison was evaluated as making satisfactory progress. He was issued a reappointment recommendation by the RP&T Review Committee, which was comprised of Dr. Suzanne Soled, Dean Jarchow, and Provost Gail Wells. At the conclusion of Professor Larison's first RP&T Review, NKU's Board of Regents issued him another one-year contract with NKU.
Professor Larison's second RP&T Review occurred during the 2007-2008 academic year. This time, at all levels, he was reappointed with "conditions to be removed." Specifically, the condition cited was "teaching" which stated:
While your graduate courses have received positive evaluation and comments, the feedback from your undergraduate courses, a major portion of your teaching load, indicates low student evaluations and some comments of concern. In particular, consider ways to develop a clearer enunciation of grading criteria in advance of assignments, a more specific calendar of due dates and consistent feedback to students.
Professor Larison's third RP&T Review took place during the 2008-2009 academic year. Once again, this review culminated in Professor Larison receiving a reappoint with conditions to be removed. All levels of review expressed concern with the progress Professor Larison was making in the areas of service and scholarship.
On April 1, 2009, Dr. Soled, in her capacity as Department Chairperson, provided Professor Larison an Annual Performance Review. She gave him a rating of "Professional" in each of the three key performance areas, which according to the NKU handbook results "from the good, strong performance that is expected from all faculty." She further noted that Professor Larison had "demonstrated good, strong performance in all areas of [his] responsibilities."
During the 2009-2010 academic year, his fourth year at NKU, Professor Larison applied for tenure. The RP&T Review Committee recommended that NKU grant Professor Larison tenure. The RP&T Review Committee's recommendation was then forwarded to the Department Chair, Dr. Soled.
Despite the unanimous positive vote of the RP&T Review Committee, Dr. Soled recommended denial of Professor Larison's application for promotion and tenure. Dr. Soled cited the following reasons: "problems with teaching; lack of clearly articulated research agenda; insufficient evidence of substantial service; and problems in previous year (negative recommendation in the past year and a total of three conditions to be removed)." Professor Larison requested Dr. Soled to reconsider her recommendation. However, she refused to do so stating that Professor Larison had not provided her with any additional information to consider.
Pursuant to the Faculty Handbook, a tenured candidate may request reconsideration after the first level of negative review.
Next, Professor Larison's tenure portfolio, which now included the prior recommendations, passed to Dean Wasickso. Dean Wasickso recommended that tenure be denied to Professor Larison. Dean Wasickso testified in his deposition that he independently reviewed Professor Larison's materials and ultimately came to "substantially the same opinions" as Dr. Soled. Dean Wasickso testified that it is his practice to use similar language as the prior reviewer if he agrees with the recommendation for the sake of consistency.
Professor Larison also asked Dean Wasickso to reconsider his recommendation. The Faculty Handbook only provides for such a request after the first negative recommendation. Since Professor Larison had already received a negative recommendation and sought reconsideration, he was not eligible to seek reconsideration a second time. Accordingly, Dean Wasickso did not respond to Professor Larison's request for reconsideration.
Professor Larison's portfolio, which now contained the positive recommendation from the RP&T Review Committee and the two negative recommendations from Dr. Soled and Dean Wasickso, passed to Provost Wells for review. Provost Wells's review resulted in a recommendation that tenure be denied. During her deposition, Provost Wells testified that she recommended denying Professor Larison tenure because she did not find any evidence suggesting that Professor Larison was likely to have a career of excellence at NKU given his prior deficiencies and his failure to effectively maintain long-term improvement in his problem areas.
At this stage, Professor Larison appealed to the Peer Review Advisory Committee. Professor Larison's request for review stated that "[t]he letters constructed by the Chair...and Dean...to formulate an argument against recommending me for promotion and tenure contain false information, do not reflect a careful examination of the materials presented ... and are radically inconsistent with the decision arrived at by [the RP&T Committee]." After review, the Peer Review Advisory Committee concluded that Professor Larison presented a prima facie case for a hearing and referred his appeal for a hearing.
In the spring of 2010, the Peer Review Hearing Committee found evidence was lacking to conclude that Dr. Soled's recommendation had a clear, rational, and fair basis. The Peer Review Hearing Committee based its finding on the inconsistencies between the positive comments in her spring of 2008 annual review and her fall of 2009 recommendation to deny tenure, along with the Department Committee's unanimous positive recommendation for tenure.
The Peer Review Hearing Committee's findings were forwarded to NKU President, Dr. James Votruba, along with Professor Larison's portfolio and all prior recommendations. President Votruba reviewed the hearing transcript and documents received in evidence, the Peer Review Hearing Committee's written findings of fact, and recommendations from those who had reviewed Professor Larison's file. While recognizing that the Peer Review Hearing Committee had concluded that Dr. Soled's decision lacked a "rational basis," Dr. Votruba did not find anything he considered to be a "significant material finding" that would suggest an unfair outcome. Ultimately, President Votruba recommended that tenure be denied to Professor Larison. During his deposition, President Votruba testified that he recommended denying Professor Larison tenure because he did not believe the evidence was sufficient to demonstrate that Professor Larison met the high bar necessary for NKU to make a lifetime commitment to him as a faculty member.
In July 2010, the Board of Regents approved President Votruba's recommendation. Professor Larison's application for tenure was formally denied. NKU then issued him a final, one-year terminal contract for the 2010-2011 academic year.
On or about April 29, 2011, Professor Larison filed a complaint against NKU for violating his right to be free from employment discrimination on account of his age as provided for by KRS 344.040 and for violating his rights under Section 2 of the Kentucky Constitution. Before an answer was due from NKU, Professor Larison filed an amended complaint wherein he named the Individual Defendants. In his amended complaint, Professor Larison asserted that NKU violated KRS 344.040 and that the Individual Defendants violated his rights under Section 2 of the Kentucky Constitution.
On June 16, 2011, the Individual Defendants filed a joint motion to dismiss Professor Larison's claims against them for failure to state a claim. By Order entered May 12, 2012, the circuit court dismissed Professor Larison's claims against the Individual Defendants on the basis that Professor Larison could not maintain a private right of action against the Individual Defendants predicated solely on their alleged violations of the Kentucky Constitution.
Thereafter, discovery proceeded on Professor Larison's age-discrimination claim. Eventually, NKU moved for summary judgment. Ultimately, the circuit court granted summary judgment in favor of NKU. This appeal followed.
III. ANALYSIS
A. Constitutional Claim against the Individual Defendants
In his amended complaint, Professor Larison alleged that the Individual Defendants' acts or omissions in denying his application for tenure violated his rights under Section 2 of the Kentucky Constitution. The Individual Defendants moved to dismiss Professor Larison's claims against them on the basis that he failed to state a cognizable cause of action. The circuit court agreed and dismissed all claims against the Individual Defendants with prejudice. On appeal, Professor Larison argues that the dismissal was in error.
Under the appropriate standard when reviewing a motion to dismiss, the pleading must be construed in a light most favorable to plaintiff and all allegations taken as true. Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007). A motion to dismiss should not be granted "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved[.]" Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). Our Supreme Court noted it is an "exacting standard of review" and "the question is purely a matter of law." Id. Consequently, our standard of review is de novo. Id.
In St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529 (Ky. 2011), the Kentucky Supreme Court held that Kentucky law does not recognize a cause of action for alleged violations of Kentucky constitutional rights. Specifically, the Kentucky Supreme Court ruled that Kentucky's General Assembly has not authorized a statutory private right of action for state constitutional violations, and refused to outright create a constitutional tort akin to a federal Bivens action for violations of Kentucky's Constitution. The Court's reluctance to do so in Straub was motivated in large part by the availability of other means to vindicate the protected interest at issue. Id. at 17-18 (citing Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588 (2007)).
The same rationale applies in this case. Professor Larison's claims against the Individual Defendants are based on his assertion that they violated his rights by denying him tenure due to his age. Professor Larison has other means to vindicate his rights, namely a cause of action under the KCRA. While Professor Larison cannot sue the Individual Defendants directly for an age discrimination claim, he may bring suit against his employer, NKU. Given the availability of relief under the KCRA, we fail to find a compelling reason or special circumstance that would warrant creating a new cause of action. As such, we conclude that the circuit court appropriately dismissed Professor Larison's claims against the Individual Defendants for failure to state a claim.
B. KCRA Age Discrimination Claim against NKU
The KCRA makes it unlawful for an employer to discriminate against an individual on the basis of his age. See KRS 344.040(1)(a) ("It is an unlawful practice for an employer: (a) To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's . . . age forty (40) and over." Ultimately, the circuit court granted summary judgment to NKU on Professor Larison's age discrimination claim.
A motion for summary judgment must be granted if the record "shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56.03. "Belief is not evidence and does not create an issue of material fact." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990); see also Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) ("A party's subjective beliefs about the nature of evidence is not the sort of affirmative proof required to avoid summary judgment.") On appeal, we must consider the evidence of record in the light most favorable to the non-movant and must further consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the circuit court's decision and will review the issue de novo." Lewis v. B&R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
Kentucky Rules of Civil Procedure.
"There are two paths for a plaintiff seeking to establish an age discrimination case. One path consists of direct evidence of discriminatory animus. Absent direct evidence of discrimination, [a] [p]laintiff must satisfy the burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005). Professor Larison is attempting to prove his case via the second path, the burden shifting of McDonnell Douglas.
Under McDonnell Douglas, a plaintiff alleging wrongful age-based termination must first establish a prima facie case with proof that he: (1) was a member of a protected class; (2) was discharged; (3) was qualified for the position from which he was discharged; and (4) was replaced by a person outside the protected class. Williams, 184 S.W.3d at 496. Once a prima facie case has been established, the burden then shifts to the defendant to articulate a "legitimate non-discriminatory" explanation for its adverse employment action. See Jefferson County v. Zaring, 91 S.W.3d 583, 590 (Ky. 2002). Finally, the burden shifts back to the plaintiff to demonstrate that the actions taken were motivated by his age, and that the motivations articulated by the employer were merely a pretext of age discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825.
The only dispute before the circuit court involved the fourth element, whether Professor Larison demonstrated that he was replaced by a person outside the protected class. To this end, Professor Larison put forth evidence that three younger employees in his department applied for tenure in the same year he did. The younger employees went through the same tenure review process as Dr. Larison. They were all granted tenure while Dr. Larison was not. As the circuit court recognized, this evidence is sufficient to meet the relatively "low bar" of establishing a prima facie case in the context of an employment discrimination dispute.
Thereafter, the burden shifted to NKU to show a "legitimate non-discriminatory" explanation for denying tenure to Professor Larison. NKU articulated that it denied Professor Larison tenure because his record, taken as a whole, failed to show the requisite consistency. The standard of tenure is not limited to how one has already performed; it also encompasses past performance as an indicator of what is to come. Provost Wells testified that a tenure candidate is evaluated to determine if the candidate has shown a consistent proficiency in teaching, scholarship, and service. Based upon their review of Professor Larison, the reviewers concluded that Professor Larison did not meet the high bar required of a successful tenure candidate. Professor Larison had "conditions to be removed" in two of the four years leading to tenure, in each of the evaluated areas (teaching, scholarship, and service). Conditions to be removed reflect inconsistency. The circuit court found, and we agree, that the prior evaluations were a sufficient, nondiscriminatory reason for NKU to deny tenure to Professor Larison.
Because NKU articulated a legitimate reason for its employment decision, the ultimate burden shifted back to Professor Larison to show that NKU's explanation is merely pretextual and that the decision was actually motivated by age discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 Ed. 2d 105 (2000). Professor Larison can meet this burden by showing that: (1) the proffered reasons for the employment decision are false; (2) the proffered reasons did not actually motivate the decision; or (3) the reasons given were insufficient to motivate the decision. See Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).
Professor Larison maintains that he presented such evidence with respect to Dr. Soled. He cites the fact that while serving as Chairperson of the Department of Teacher Education, Dr. Soled gave negative tenure recommendations to two out of three tenure applicants that were Professor Larison's age or older, but gave a positive tenure recommendation to eight out of eight tenure applicants who were younger than Professor Larison. NKU counters that Professor Larison cannot rely on evidence related to Dr. Soled because she was not the ultimate decider of whether he would receive tenure.
Professor Larison bases his age discrimination case against NKU on Dr. Soled's allegedly discriminatory conduct on the basis of "cat's paw liability" as articulated in Staub v. Proctor Hosp., — U.S. —, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). Staub concerned alleged discrimination in violation of the Uniformed Services and Reemployment Rights Act ("USERRA"). In Staub, the Supreme Court considered "the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision." 131 S.Ct. at 1189.
As explained in Staub,
The term "cat's paw" derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king's behalf and receive no reward.
In a "cat's paw" case, a plaintiff typically seeks to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision. The Supreme Court held that a plaintiff may establish "cat's paw" liability "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." 131 S.Ct. at 1194. The Supreme Court explained that "[p]roximate cause requires only 'some direct relation between the injury asserted and the injurious conduct alleged,' and excludes only those 'link[s] that are too remote, purely contingent, or indirect.'" Id. at 1192 (quoting Hemi Group LLC v. City of New York, 559 U.S. 1, 130 S.Ct. 983, 989, 175 L.Ed.2d 943 (2010)).
The Supreme Court declined to "adopt a hard-and-fast rule" in cat's paw cases which would immunize an employer who performs an independent investigation and exercises judgment independent on the other hand from the allegedly biased supervisor. Staub, 131 S.Ct. at 1193. The Supreme Court explained that "if the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action," then the employer will not be liable. Id. However, "the supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified." Id. The Supreme Court further explained that its holding, contrary to the dissent's characterization, reflected the longstanding principle that an employer should only be liable when it had delegated part of the decision making power to the biased supervisor. Id. The Supreme Court reasoned that "if the independent investigation relies on facts provided by the biased supervisor—as is necessary in any case of cat's-paw liability—then the employer (either directly or through the ultimate decision maker) will have effectively delegated the fact-finding portion of the investigation to the biased supervisor." Id.
While the Supreme Court's decision in Staub involved the USERRA, we see no reason why the agency principles that underlie Staub should not be equally applicable to all types of employment discrimination. However, as recognized by several circuit courts, Staub's "'proximate causation' standard does not apply to cat's paw cases involving age discrimination." Sims v. MVM, Inc., 704 F.3d 1327, 1336 (11th Cir. 2013); see also, Marcus v. PQ Corp., 458 Fed. Appx. 207, 212 (3d Cir. 2012); Wojtanek v. Dist. No. 8, Int'l. Ass'n. of Machinists & Aerospace Workers, AFL-CIO, 435 Fed. Appx. 545, 549 (7th Cir. 2011); Simmons v. Sykes Ents., Inc., 647 F.3d 943, 949-50 (10th Cir. 2011). As explained by the Tenth Circuit,
To illustrate, a supervisor's animus might be a "but-for" cause of termination where, for example, the biased supervisor falsely reports the employee violated the company's policies, which in turn leads to an investigation supported by the same supervisor and eventual termination. Or the biased supervisor may write a series of unfavorable periodic reviews which, when brought to the attention of the final decision-maker, serve as the basis for disciplinary action against the employee. But where a violation of company policy was reported through channels independent from the biased supervisor, or the undisputed evidence in the record supports the employer's assertion that it fired the employee for its own unbiased reasons that were sufficient in themselves to justify termination, the plaintiff's age may very well have been in play—and could even bear some direct relationship to the termination if, for instance, the biased supervisor participated in the investigation or recommended termination—but age was not a determinative cause of the employer's final decision.Simmons, 647 F.3d at 950.
Professor Larison's case is based on Dr. Soled's tenure recommendation. He maintains that Dr. Soled provided a positive annual review of him the previous spring, but recommended denying him tenure just a few months later. He argues this demonstrates that Dr. Soled favors younger professors for tenure. To this end, Professor Larison points to the internal Peer Review Hearing Committee, which found Dr. Soled's recommendation to deny tenure, lacked a clear, rational, and fair basis.
We do not believe that Professor Larison can show the "but for" causation necessary to impute Dr. Soled's alleged discriminatory motives to NKU. The reviews concerning Professor Larison were mixed. Dr. Soled supplied one of several opinions in a multilevel review process. Professor Larison failed to present any evidence that NKU was required to or did place greater significance on Dr. Soled's review than it did on others. Moreover, Professor Larison failed to show that subsequent reviewers substituted Dr. Soled's review for their independent judgment on the merits of his portfolio.
The Dean, Provost, and President reviewed Professor Larison's portfolio, his teaching evaluations, syllabi, publications, reviews and previous evaluations. There were no disputed facts or even allegation of age bias by Professor Larison in the analysis and review made by these subsequent reviewers. Furthermore, there was no showing that the subsequent review was a sham or a mere rubber stamp of Dr. Soled's recommendation. See, e.g., Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1234 (10th Cir. 2000).
Given the independent nature of the subsequent reviews and NKU's legitimate non-discriminatory rationale, we agree with the circuit court that Professor Larison failed to offer sufficient evidence from which a jury could conclude that Dr. Soled's allegedly discriminatory recommendation was the "but for" cause of the denial of tenure to him.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the decisions of the Campbell Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Marc D. Mezibov
Susan L. Butler
Cincinnati, Ohio Michael J. O'Hara
Suzanne Cassidy
Crestview Hills, Kentucky BRIEF FOR APPELLEES: Michael W. Hawkins
Drew B. Millar
Kathleen A. Carnes
Cincinnati, Ohio
Id. at 416, 131 S. Ct. at 1190.