Annett v. University of Kansas
| Decision Date | 26 January 2000 |
| Docket Number | No. Civ.A. 99-2070-CM.,Civ.A. 99-2070-CM. |
| Citation | 82 F.Supp.2d 1230 |
| Parties | Dr. Cynthia ANNETT, PH.D. and Dr. Raymond Pierotti, PH.D., Plaintiffs, v. UNIVERSITY OF KANSAS, and Dr. Thomas Taylor, PH.D., in his personal capacity, Defendants. |
| Court | U.S. District Court — District of Kansas |
Alan V. Johnson, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, for Cynthia Annett, PH.D, plaintiff.
Rose A. Marino, Office of General Counsel, University of Kansas, Lawrence, KS, Barbara L. McCloud, University of Kansas, Office of the General Counsel, Lawrence, KS, for University of Kansas, defendant.
This matter is before the court on defendants' motions for summary judgment against plaintiff Annett, (Doc. 39), and against plaintiff Pierotti. (Doc. 40). The court has also considered the motion by plaintiff Pierotti to supplement his memorandum in opposition to the defendants' motion. (Doc. 52). Dr. Pierotti's motion is granted. As explained fully below the defendants' motions are granted in part and denied in part.
Dr. Pierotti justifies his motion alleging the defendants have made arguments for the first time in their reply memorandum. The defendants argue that the motion is contrary to Fed.R.Civ.P. 56 and D.Kan. Rules 7.1 and 56.1 without specifying in what way the motion is violative of the rules. In both memoranda the parties argue the merits of the summary judgment motion.
Supplementation of motions is committed to the sound discretion of the court. See 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1194 (2d ed.1990). In the interest of justice Dr. Pierotti's motion to supplement his memorandum in opposition is granted so that the court may fully consider the parties' arguments on the summary judgment motion at issue. The court has considered the arguments in Dr. Pierotti's motion to supplement and the defendants' opposition in deciding the motion for summary judgment.
There is considerable controversy between the parties as to the facts in this case and, to a greater extent, the legal effect of the facts. As required for summary judgment purposes, the court views the facts in the light most favorable to the plaintiffs. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The court will provide additional facts when it addresses the summary judgment motion against Dr. Pierotti.
Plaintiffs are husband, Dr. Pierotti, and wife, Dr. Annett, who were employed by the University of Kansas (KU) as tenuretrack assistant professors in the Department of Systematics and Ecology beginning in 1992. The Department of Systematics and Ecology was later merged with the Department of Botany to form the Department of Ecology and Evolutionary Biology. Merger of the departments is irrelevant to the issues in this case, and the Department of Systematics and Ecology or the Department of Ecology and Evolutionary Biology will be referred to hereinafter as the department. Dr. Thomas Taylor became chair of the departments in 1996 and remains in that position.
In January 1997, at a regular meeting of the department Dr. Taylor suggested that, in order to provide financial support to graduate students then in the department for a longer period of time, the department should reduce the number of graduate students admitted. Graduate students who are teaching assistants or research assistants, are employees of the university. Dr. Annett generally opposed changes which, in her opinion, would discriminate against minority, female and non-traditional students in the Master's program.1
Changes were approved at a special meeting of the department held on March 1, 1997. At the meeting Dr. Annett once again opposed several of the changes, alleging that they unfairly discriminated against minority and female students.2 Subsequently, on March 7, 1997, Dr. Pierotti sent a letter to Dr. Taylor, protesting the changes. Dr. Pierotti stated his opinion that the graduate committee of the department contained members who resisted efforts to recruit minorities, and that fact influenced the new policies. He opined that the changes would prevent recruitment of minority graduate students, that the department had historically failed to support minority recruitment of both students and faculty, and that by changing the program the department was becoming anti-minority.3
Dr. Pierotti sent a copy of the March 7 letter to the Dean of the college and to the Provost and Chancellor of the university. Dr. Taylor circulated the letter to the other department faculty. At least one other of the faculty felt that the letter should not have been sent to the Dean, the Provost and the Chancellor until an attempt was made to settle the matter within the department. On March 17, 1997, Dr. Taylor sent a response to Dr. Pierotti in which he expressed concern that Dr. Pierotti "chose to open a department discussion at the level of the Provost and Chancellor because you feel your opinion is the only valid one." A copy was sent to the Dean.
In the spring of 1995 Dr. O'Brien made a pre-tenure review of Dr. Annett, evaluating her outstanding in teaching, research and service. On April 18, 1997 Dr. Taylor notified Drs. Annett and Pierotti that they were scheduled for mandatory review for promotion and tenure (hereinafter promotion) during the 1997-98 academic year. Dr. Annett received her 1996 evaluation from Dr. Taylor in a letter and attachment dated April 22, 1997. The attachment indicated that Dr. Annett's standardized research evaluation score was higher than the department median in 1996 and in two out the three preceding years. The dollar amount of Dr. Annett's salary increase was greater than the department average in 1996 and in all three preceding years.4
In the summer of 1997, Dr. Taylor changed the department's promotion procedures. None of these major changes were discussed with the plaintiffs. Seven external referees were contacted to review Dr. Annett's packet. Four recommended promotion, two did not. The seventh noted that Dr. Annett's packet would proceed with some difficulty at his school.
The department Promotion and Tenure Committee recommended Dr. Pierotti for promotion but did not recommend Dr. Annett. On October 22, 1997, a majority of the faculty of the department agreed with the recommendation. Dr. Taylor, as chair of the department, did not recommend Dr. Annett for promotion.
On November 3, 1997, during the promotion process, Dr. Taylor requested that the Dean investigate whether Dr. Annett had violated the Faculty Code of Conduct by listing three works in her promotion packet as "accepted for publication or in press." The Associate Dean was assigned to do the investigation. The College Committee on Promotion and Tenure, on December 16, 1997, voted to recommend Dr. Pierotti, but not Dr. Annett for promotion. The negative vote on Dr. Annett was based upon a poor rating in research and scholarship.
In February 1998, the University Committee on Promotion and Tenure began its consideration of Drs. Annett and Pierotti for promotion. The University Committee requested additional information from the Department Committee and the College Committee. On February 18, 1998, Dr. O'Brien provided a letter to the University Committee urging a recommendation for promotion of Dr. Annett. In March, 1998, the University Committee recommended both Drs. Annett and Pierotti for promotion. The Provost disagreed with the recommendation of the University Committee and recommended to the Chancellor that Dr. Annett not be granted promotion. The Chancellor followed the recommendations of the Provost and granted promotion to Dr. Pierotti but not Dr. Annett.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler, 144 F.3d at 670 (citing Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505.)
The moving party bears the initial burden of demonstrating an absence of a general issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71, 106 S.Ct. 2505. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505; see Adler, 144 F.3d at 671 n. 1 (). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. "Conclusory statements going to ultimate issues are not adequate to avoid summary judgment." Koch v. Koch Indus., Inc., 969 F.Supp. 1460, 1471 (D.Kan...
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