Javetz v. Bd. of Control, Grand Valley State Univ.

Decision Date31 October 1995
Docket NumberNo. 4:94-CV-67.,4:94-CV-67.
PartiesEsther JAVETZ, Plaintiff, v. BOARD OF CONTROL, GRAND VALLEY STATE UNIVERSITY, Allen Ten-Eyck, Anthony Travis, and Rodney Mulder, Defendants.
CourtU.S. District Court — Western District of Michigan

COPYRIGHT MATERIAL OMITTED

Ross E. Chapman, Deming, Hughey, Chapman & Richardson, Kalamazoo, MI, for Plaintiff.

Pamela Chapman Enslen, Miller Canfield Paddock & Stone, Kalamazoo, MI, for Defendants.

OPINION OF THE COURT

McKEAGUE, District Judge.

Plaintiff Esther Javetz was employed as a non-tenured assistant professor of education technology at Grand Valley State University from August 1987 to May 1994. In the spring of 1993, she was considered for tenure and tenure was denied. Plaintiff commenced this action in May 1994. In her second amended complaint, she seeks injunctive and compensatory relief, alleging defendants discriminated against her because of her national origin, religion and sex and deprived her of property without due process. Now before the Court is defendants' motion for summary judgment.

I

Plaintiff came to the United States from Israel in 1980. She is Jewish. She obtained her doctorate in instructional design and technology at Ohio State University in September 1987. She accepted appointment as assistant professor of education and entered into a two-year probationary contract with defendant Grand Valley State University ("Grand Valley") in May 1987. Starting annual salary was $26,000. Prior to completion of the two-year contract, plaintiff was advised by defendant Anthony Travis, Dean of the Social Sciences Division, that her contract would be renewed for one year. He advised that her contract was not renewed for the customary two-year period because of "serious questions" about teaching evaluations by students and peers. Travis also recommended plaintiff expand her research base in preparation for tenure consideration in 1993.

In April 1989, plaintiff received notice from Travis that her contract would be renewed also for the 1990-91 academic year, but that the Social Services Personnel Committee remained dissatisfied with the improvement of her teaching performance. He further specifically advised plaintiff that she was "not on track for a positive evaluation for tenure."

In April 1990, Travis again advised plaintiff that her contract would be renewed for the year 1991-92, but he cautioned that she needed to make continued improvement in teaching performance and research efforts.

In April 1991, Travis departed from the personnel committee recommendation to renew plaintiff's contract for only one year; he awarded a two-year renewal, commending her for improvement in her teaching performance, but again expressing concern about her research productivity.

Plaintiff was considered for tenure in 1993. The School of Education Personnel Committee reached a vote of two in favor of awarding tenure, two opposed, with one abstention. The School of Education Faculty Council then reached a vote of six in favor, eight opposed, with two abstentions. A memorandum reflecting these results was forwarded to the Social Sciences Division Personnel Committee, which unanimously recommended that tenure be denied. Travis adopted the recommendation and advised plaintiff of the decision in a letter dated April 26, 1993. Plaintiff was advised that she had not improved her teaching ability enough to meet Grand Valley's standard for excellence in teaching.

In a letter dated August 9, 1993, in response to plaintiff's request for reconsideration, Travis further explained the rationale for his decision. First, he observed that plaintiff had not submitted compelling evidence that would move him to overrule the recommendations of both the School of Education and the Social Sciences Division Personnel Committees. The personnel committees had found her teaching performance erratic and substandard and her improvement marginal, and he had no reason to disagree. Further, Travis responded at length to plaintiff's charge that the evaluation process was tainted by cultural bias:

I have given careful consideration to your thoughts on this subject. I have also reread the university's many published statements about the centrality of the student in the learning environment. Grand Valley State University prides itself on its focus on student needs.
In the hiring process, in the orientation period and in the evaluation process for tenure, deans, unit heads, and senior faculty make it clear to faculty members that students and their needs are at the center of all our endeavors. For example, professors are not only to require students to meet high standards but also to teach in a manner that enhances their self esteem, confidence, and their desire to engage in life long learning.
Although a wide variety of teaching practices are encouraged, any teaching method that alienates students from the learning process will not be tolerated. From the evidence that I have reviewed your teaching does just that. We have had faculty members from any number of cultural backgrounds that have understood Grand Valley's role and mission in this regard and have become excellent teachers.
Your teaching style as recounted by your colleagues, students, and even your own statements, including for example your comments on why you find the student evaluation forms unacceptable, does not fit the university's definition of teaching excellence.
Your failure to accept Grand Valley State University's well-published definition of teaching excellence makes me very pessimistic that you would ever be able to meet the expectations of your colleagues, your students, and your dean.

Plaintiff grieved the denial of tenure. Ultimately, the grievance subcommittee, by a vote of three-to-one, concluded that plaintiff should be given a two-year contract renewal with a final decision on tenure to be made after two years. The recommendation was based on the majority finding that teaching performance requirements and expectations had not been clearly communicated. The majority noted specifically that tenure was denied because of unsatisfactory teaching performance even though Travis had, in the last official communication prior to tenure consideration, commended plaintiff on her teaching improvement as of April 1991, and there was no manifest decline in her performance in the meantime. The majority finding concludes: "We question whether Dr. Javetz is an exemplary teacher in a School of Education that teaches teaching; however, it was also difficult to ascertain what that unit and division truly considered to be good teaching."

The Social Sciences Division Personnel Committee considered the grievance subcommittee recommendation and rejected it, observing that it had been fully cognizant of the concerns raised by the majority finding when it originally determined to recommend denial of tenure. Travis, in turn, consistent with the personnel committee action, reaffirmed his original decision not to recommend tenure. The Grand Valley State University Board of Control later adopted this recommendation and plaintiff's employment ended after a one-year terminal contract.

Plaintiff's complaint contains five counts. Named as defendants are the Grand Valley Board of Control, Anthony Travis, Allan Ten-Eyck, Dean of the School of Education, and Rodney Mulder, Chairperson of the Social Services Division Personnel Committee. In count I plaintiff alleges under Title VII, 42 U.S.C. § 2000e-5, and under 42 U.S.C. § 1981, that defendants unlawfully discriminated against her based on her national origin, her religion and/or her sex in the decision to deny her tenure, in the salary she was paid, in the provision of resources and professional and promotional support for her teaching, and in the refusal to grant her the customary two-year contract renewals. In counts II and III, she alleges under 42 U.S.C. § 1983, that defendants' decision to deny her tenure constituted a deprivation of property without procedural due process and substantive due process, respectively. In count IV, she alleges under 42 U.S.C. § 1983, that the decision to deny her tenure constituted a denial of equal protection. Count V contains a claim under the Equal Pay Act, 29 U.S.C. § 206(d), alleging she was paid less because of her sex.

In their motion for summary judgment, defendants challenge all five claims and contend they are entitled to judgment as a matter of law.

II

Defendants' motion for summary judgment requires the Court to look beyond the pleadings and evaluate the facts to determine whether there is a genuine issue of material fact that warrants a trial. Fed. R.Civ.P. 56(c). See generally Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). That is, the Court must determine "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). The Court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson, supra, 477 U.S. at 248, 106 S.Ct. at 2510. Once the moving party identifies elements of a claim or defense which it believes are not supported by evidence, the nonmovant must present affirmative evidence tending to show a genuine dispute of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Production of a "mere scintilla of evidence" in support of an essential...

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