Childers v. Trs. of the Univ. of Pa., CIVIL ACTION No. 14-2439
| Decision Date | 21 March 2016 |
| Docket Number | CIVIL ACTION No. 14-2439 |
| Parties | KRISTEN STROMBERG CHILDERS, Ph.D Plaintiff, v. TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Kristen Stromberg Childers was an assistant professor of history at the University of Pennsylvania ("Penn") who was twice denied tenure. She claims that the second tenure denial was a result of gender discrimination, and more specifically, that she did not achieve tenure because of stereotypes relating to the career focus of women with child care responsibilities (i.e., family responsibility discrimination). She filed suit against Penn under Title VII, the PHRA, and the Philadelphia Fair Practices Ordinance. Penn has moved for summary judgment, arguing that Dr. Childers has not even set forth a prima facie case of discrimination, let alone shown that Penn's legitimate non-discriminatory reasons for not granting her tenure were pretextual. Penn also moves to exclude one of Dr. Childers's expert witnesses. The Court heard oral argument on the motions and allowed both parties to submit supplemental briefing. After reviewing the motions and all responses and supplements thereto, the Court will grant Penn's Daubert motion and deny Penn's motion for summary judgment.
The following is a general outline of the tenure process at Penn and Dr. Childers's career path, as well as a discussion of Dr. Childers's tenure applications.
Penn consists of twelve schools, including the School of Arts & Sciences ("SAS"), of which the History Department is a part. Assistant professors in SAS have a seven-year probationary period, and in year six of that period there is a mandatory review for promotion. Assistant professors may extend the "tenure clock" if a child is born or adopted into the faculty member's household.
The tenure review process starts in the faculty member's department. That department solicits confidential recommendations from external reviewers, who are faculty members in the same field as the applicant at other universities. A three-person committee within the department reviews the external reviews and the candidate's dossier and then makes a recommendation concerning tenure to the department chairperson. The tenured faculty then meet to discuss the candidate and vote on a recommendation to be made to the Dean of SAS. If the vote is in the candidate's favor, the department chairperson forwards the tenure case to the Dean.
Before the Dean assesses the case, however, the SAS Personnel Committee reviews it. The SAS Personnel Committee is made up of members from three disciplines (Humanities, Social Sciences, and Natural Sciences), and has a subpanel for each of the three disciplines. The subpanel with which the department submitting the candidate is aligned (for History, that is the Humanities subpanel) reviews the tenure case first and votes on the candidate, and then the entirePersonnel Committee discusses and votes on the candidate. If the Personnel Committee vote is positive, the chair of the Personnel Committee writes to the Dean with the Committee's recommendation.
Once the Dean receives the case from both the department and the Personnel Committee, the Dean forwards the case to the Provost with the Dean's own recommendation. The Provost then meets to discuss the case with the Provost Staff Conference, which consists of the deans from Penn's four largest schools, four deans from other schools on a rotating basis, and vice provosts for education, faculty affairs, and research. At the meeting, the Dean in question presents the case to the Provost Staff Conference and then leaves the room while the Conference discusses the candidate. Following the meeting, the Provost makes a decision on tenure. If the Provost decides in favor of the candidate, the candidate is presented to the University's Trustees for the final decision on tenure.
Dr. Childers earned her Ph.D. from Penn in 1998. She then taught at area schools such as Bryn Mawr, Swarthmore, and Rutgers before becoming an assistant professor at Penn in the spring of 2002. Dr. Childers's area of specialty is 20th century France, and, in particular, the Vichy period. She focuses her scholarship on gender, family history, social policy, colonialism, and decolonization. Her first book, Fathers, Families and the State, 1914-1945, was published by Cornell University Press in 2003. Her second, Seeking Imperialism's Embrace: National Identity, Decolonization, and Assimilation in the French Caribbean, is pending publication by Oxford University Press. In the spring of 2004, Dr. Childers took a leave of absence relating to the birth of her first child. She then took a full year of "junior leave" during the 2005-06 school year, meaning that she was relieved of all teaching responsibilities in order to allow her to focuson research and publication. In 2007-08, Dr. Childers took a half-time teaching arrangement due to the birth of her second child, and in 2008-09, she again took a half-time teaching arrangement due to her first child's autism diagnosis.
Dr. Childers was first considered for tenure in early 2008. The History Department faculty voted 21-11 in favor of tenure, but the Personnel Committee voted 9-0 (with one abstention) against tenure, noting concerns with Dr. Childers's scholarly productivity following the 2003 publication of her first book. After this denial, Dr. Childers requested a one-year extension of her probationary period. The department approved that extension and allowed her to present a new tenure case in the 2009-10 academic year.
Because more than a year had elapsed since her first go at tenure, Dr. Childers prepared a completely new tenure dossier and the department also reviewed her candidacy anew. At this time, her second book, while still unpublished, had been accepted by Oxford University Press and four of six chapters had been completed. Ten external reviewers were asked to provide letters, and six of those ten submitted letters. This time, the History Department voted 26-5 in her favor, with one abstention. The Humanities Subpanel split 2-2 on the question of Dr. Childers's candidacy and expressed concern about her productivity and reputation in the field. The Subpanel was informed about Dr. Childers's leave and the reasons for that leave, and some of the questions the Subpanel submitted to the History Department Chair related to Dr. Childers's leave. The History Department Chair, Professor Peiss, responded by elaborating on the reasons for Dr. Childers's leave, including informing the Subpanel of the child's autism diagnosis. The full Personnel Committee then voted in favor of Dr. Childers's candidacy, 7-4, while still expressing concerns about her level of productivity and visibility in her field, noting inparticular concerns about her lack of travel to the French and Caribbean venues important to her work.
SAS Dean Bushnell then forwarded the case to the Provost and Provost Staff Conference, with a letter of support that noted the difficulty in assessing Dr. Childers's productivity in light of her family leave. After the Dean presented the case to the Provost Staff Conference, the Conference discussed Dr. Childers's case and advised against a grant of tenure. Provost Vincent Price agreed with that recommendation and decided against granting Dr. Childers tenure.
In October 2010, Dr. Childers filed a grievance regarding the Provost's decision to deny her tenure, claiming that the decision was based on her gender and her prior family leaves and arguing that the comments regarding her leave in the various letters prepared in support of her tenure case were not in compliance with University procedures. A three-member Faculty Grievance Commission was empaneled. At first, the Commission consisted of two men and one woman, but Penn exercised a peremptory strike to remove the female member of the Commission, who was then replaced by a man, against Dr. Childers's objections. The Faculty Grievance Commission conducted a review of the case and held a two-day hearing. They concluded that the references to leaves of absence did not comply with University policy and "unfairly amplified the issue of Dr. Childers's leave time on her productivity," but at the same time found no evidence of discrimination. Because of the irregularities, the Commission recommended that Dr. Childers's case be reevaluated. They also recommended that the ultimate decision-maker be someone other than the Provost and that the committee assisting in evaluating the dossier be composed of members who had not previously evaluated her case.
The Provost accepted the reevaluation recommendation, but did not recuse himself from the case or ensure that the Conference not contain members who had previously evaluated Dr.Childers's candidacy. After redacting references to her leave from the dossier, the Provost and the Provost Staff Conference reconsidered the case and arrived at the same conclusion, noting concerns with Dr. Childers's productivity and scholarship.
Penn points out that in 2007-08, the year Dr. Childers was first considered for tenure, two SAS professors eligible for tenure had taken faculty parental leave and nine had received child-related tenure extensions (five men and four women). Two of those women received tenure, and two, including Dr. Childers, did not. One male candidate withdrew himself from consideration, one received tenure, and the remaining three men did not. In 2009-10, nine SAS professors eligible for tenure review took faculty parental leave (eight women and one man). The male professor achieved tenure. Three of the female professors waived review, and four of the remaining five were awarded tenure (only Dr. Childers did not). That same year, nine SAS professors eligible for tenure received child-related extensions of the tenure review period (seven women and two men). One male...
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