Day v. Board of Regents of University of Nebraska

• Decision Date: 24 October 1995
• Docket Number: No. 4:CV94-3193.,4:CV94-3193.
• Citation: 911 F. Supp. 1228
• Parties: Victor DAY, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA and Pill Soon Song, Defendants.
• Court: U.S. District Court — District of Nebraska

911 F. Supp. 1228

Victor DAY, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA and Pill Soon Song, Defendants.

No. 4:CV94-3193.

United States District Court, D. Nebraska.

October 24, 1995.

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James C. Zalewski, Demars, Gordon Law Firm, Lincoln, NE, for Victor Day.

David R. Buntain, Cline, Williams Law Firm, Lincoln, NE, John C. Wiltse, University of Nebraska, Lincoln, NE, for Board of Regents, of University of Nebraska, Pill Soon Song.

MEMORANDUM AND ORDER

PIESTER, United States Magistrate Judge.

Pending before the court is the defendants' motion for summary judgment. (Filing 39). For the reasons set forth below, I shall grant the motion with respect to plaintiff's constitutional and age discrimination claims and dismiss his state based contract claim for want of jurisdiction.¹

BACKGROUND

Plaintiff, Dr. Victor Day, is employed as a professor in the Chemistry Department at the University of Nebraska-Lincoln and is a resident of Nebraska. (Amended Complaint at ¶ 4; Answer to Amended Complaint at ¶ 1). The defendant Board of Regents of the University of Nebraska (Regents) is the governing body of the University of Nebraska-Lincoln (UNL) and defendant Dr. Pill Soon Song has been the chairperson of the UNL Chemistry Department since 1987. The defendants are also residents of Nebraska. (Amended Complaint at ¶ 4-5; Answer to Amended Complaint at ¶ 1).

UNL hired Dr. Day as a chemistry professor in 1972 and he has been a tenured professor since 1979. (Day Depo. 3:10-12; Defendant's Brief at 3). He became a full professor in August 1985. (Defendant's Brief at 3; Plaintiff's Brief at 2). Day is a member of the inorganic chemistry section of the department and specializes in crystallography — the study of crystal structures using diffraction equipment. (Day Depo. 46:8-47:12). Since 1984 Dr. Day has not taught any courses other than freshman chemistry and in the same year his teaching load was raised from nine to twelve credit hours per semester. (Day Depo. 137:4-14).

Prior to 1980 Dr. Day conducted his research in Hamilton Hall, a building on UNL's city campus which houses the Chemistry Department. Dr. Day had his own assigned laboratory space where he conducted research and worked with graduate students. In 1980 Dr. Day decided to remove his research activities from campus and now conducts his research in a laboratory in his home. Dr. Day's home is located outside the Lincoln city limits and is five miles from the UNL campus. (Day Depo. 2:19-3:5). Dr. Day continues to have an assigned laboratory space of approximately 600 square feet in Hamilton Hall, however, the equipment has not been functional for six or seven years. (Day Depo. 44:16-45:19; 50:15-16). Day asserts that the laboratory in his home is more complete and has better equipment than his office at UNL. (Day Affidavit at ¶ 8-9). Dr. Day admits that there is probably "no other situation like this in the country," where a faculty member's laboratory is physically located somewhere other than in the chemistry department. (Day Depo. 121:8-13).

Dr. Day's laboratory space at his home is operated through a corporation named Crystalytics. The corporation was formed in 1979 by Dr. Day and his wife. Dr. Day owns 49% of Crystalytics while his wife owns the remaining 51% and is the president of the organization. The company analyzes crystal structures on a contract basis for other private companies. (Day Depo. 45:20-50:14). During his early years as a UNL faculty member, Dr. Day worked with interested undergraduate and graduate students before he moved his research to his home. After he moved his laboratory to his home, four students, at most, have researched with him. (Day Depo. 50:1-51:14, 59:17-22; Day Affidavit at ¶ 3). UNL has not assisted Day in obtaining graduate students or assigned him any in the past. (Plaintiff's Index of Evidence Exhibit 1 — Song Depo. 181:3-193:16).

Each year a five-person Chemistry Department Executive Committee and the Department Chair, Dr. Song, evaluate the performance of faculty members during the preceding year. The results of the merit evaluation, market conditions, and increases in the cost-of-living are used to determine individual faculty member salaries. (Song Affidavit ¶ 3 and 7). Individual faculty members are evaluated with the use of a grid referred to as a "merit matrix." The matrix system allows the Committee to assign faculty scores in several subcategories in order to measure an individual's performance in research, teaching, and service at UNL. The Department adopted the merit matrix system in the 1970's and it has been used to make salary determinations since that time. (Song Affidavit at ¶ 4-5).

Merit evaluation categories are given unequal weight by the Department. From 1987 to 1994 research accounted for 60%, teaching 30%, and service 10% of a faculty member's score. In 1995 research accounted for 55%, teaching 35%, and service 10% of an individual's score. (Day Depo. 35:1-40:11; Song Affidavit at ¶ 6). The research component of the merit score is composed of the following factors: quantity of research publications (15%); quality of publications (15%); and amount of external funding obtained to support the faculty member's research (30%). (Day Depo. 39:10-40:11). Dr. Day understood that he was evaluated under the merit matrix system and "found no problem with those percentages for the department as a whole." (Day Depo. 31:1-36:20). Under this system, the Dean of the College of Arts and Sciences has the discretion to accept or reject any salary recommendations from the Department. Ultimately, the salary recommendations must be approved by the UNL Chancellor, the President of the University, and the UNL Board of Regents. (Song Affidavit at ¶ 8).

The Executive Committee and the Department Chair operate under a generally accepted definition of "external funding." The Committee defines external funding as financial support for research projects received from sources outside UNL, such as federal agencies, the National Science Foundation, the National Institute of Health, or the American Cancer Society. (Song Affidavit at ¶ 10; Day Depo. 39:10-40:11). Faculty members generally receive external funding by submitting detailed research proposals to the funding entities. The proposals are subjected to peer review prior to approval. The Committee maintains that peer review serves as an external control which assures that the proposed research is significant and will contribute to the advancement of knowledge in a particular field. (Song Affidavit at ¶ 10). Once approved, externally funded grants are paid directly to UNL to support research described in the proposals. Funds obtained from grant proposals may be used to acquire laboratory equipment and computers, support graduate, undergraduate, and post-doctoral programs, and help fund other staff and faculty members, as well as meet the Department's overhead costs. (Day Depo. 40:12-42:1; Song Affidavit at ¶ 10).

Dr. Day contends that he has received inadequate yearly salary increases and that his level of compensation is below that of other full professors at UNL. It is undisputed that some young faculty members receive higher salaries than Dr. Day. (Song Affidavit Exhibit 2; Plaintiff's Brief at 34-35). Day alleges that he was not given credit in his merit evaluations for research conducted at the Crystalytics laboratory in his home. However, Dr. Day admits that he has been advised since 1980 that his research at Crystalytics does not meet the definition of "external funding" which is used by the Department in evaluating faculty. (Day Depo. 42:19-44:13). In addition, Dr. Day acknowledges that he began receiving low raises in about 1979 or 1980, around the time when he established his research laboratory out of the Chemistry Department. (Day Depo. 82:10-83:25). He also acknowledges that the highest paid faculty members are older than he. (Day Depo. 391:14-16). The defendants claim that Dr. Day's relatively low salary is the result of his low level of contribution to the Chemistry Department as reflected by several years of low merit evaluation scores. (Song Affidavit at ¶ 13). In addition, the defendants contend that Dr. Day has never applied for or obtained any grants which meet the Committee's definition of external funding and Day presents no evidence to the contrary. (Song Affidavit at ¶ 13; Day Depo. 42:19-44:13).

Dr. Day claims that defendants Song and the Board of Regents violated his: (1) Freedom of Speech; (2) Freedom of Association; (3) Due Process rights; (4) Equal Protection rights; (5) the Age Discrimination Employment Act, 29 U.S.C. § 621 et seq.; and (6) state based contract law. This court has jurisdiction over plaintiff's constitutional claims under 28 U.S.C. § 1983 and the state based contract claim under the court's supplemental jurisdiction, 28 U.S.C. § 1367.

DISCUSSION

Federal Rule of Civil Procedure 56(c) mandates entry of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." The purpose of a motion for summary judgment is to determine whether a "genuine issue of material fact" exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Id. at 248, 106 S.Ct. at 2510. A "genuine issue" regarding a material fact exists "if the evidence is such that a reasonable jury could return a verdict for a nonmoving party." Id.

Summary judgment is properly granted when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, it is clear no genuine issue of material...