Krystek v. University of Southern Mississippi

• Decision Date: 14 January 1999
• Docket Number: Nos. 97-60598,97-60824,s. 97-60598
• Citation: 164 F.3d 251
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1255, 74 Empl. Prac. Dec. P 45,705, 131 Ed. Law Rep. 660 Dennis J. KRYSTEK, Plaintiff-Appellee, v. UNIVERSITY OF SOUTHERN MISSISSIPPI, Defendant-Appellant. Dennis J. Krystek, Plaintiff-Appellee, v. University of Southern Mississippi, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 251

164 F.3d 251

78 Fair Empl.Prac.Cas. (BNA) 1255,

74 Empl. Prac. Dec. P 45,705, 131 Ed. Law Rep. 660

Dennis J. KRYSTEK, Plaintiff-Appellee, v. UNIVERSITY OF SOUTHERN MISSISSIPPI, Defendant-Appellant.

Dennis J. Krystek, Plaintiff-Appellee, v. University of Southern Mississippi, Defendant-Appellant.

Nos. 97-60598, 97-60824.

United States Court of Appeals Fifth Circuit.

Jan. 14, 1999.

Kim Turner Chaze, Hattiesburg, MS, for Plaintiff-Appellee.

Lee Partee Gore, Hattiesburg, MS, Robert Garfield Jenkins, Sp. Asst. Atty. Gen., Michael Cameron Moore, Atty. Gen., Jackson, MS, for Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Mississippi.

Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Dennis J. Krystek was an assistant professor at the University of Southern Mississippi ("USM") who was denied tenure because he failed to publish any scholarly work. He sued USM, alleging discrimination based on gender, arguing that women were held to a lesser standard. A jury agreed and found that USM violated Title VII of the Civil Rights Act of 1964 by denying him tenure. On appeal, USM argues that (1) there was insufficient evidence to support the jury's verdict and (2) Krystek failed to file a timely complaint with the Equal Employment Opportunity Commission ("EEOC"). Because we find the evidence insufficient to support a jury verdict, we decline to address the second issue.

I

At USM, full-time, tenure-track faculty members go through a five- to seven-year review process before achieving tenure--an expectation of continuing employment for an indefinite period. The criteria for making tenure is set out in the Faculty Handbook: "sustained quality performance in the three university missions of teaching, research or other creative activity, and service, with the expectation that the candidate will achieve a high level of performance in two of these categories." The second category, research, essentially is a requirement to publish scholarly work. Although USM's College of Liberal Arts Tenure and Promotion Policy lists a number of other research-related endeavors for which tenure candidates will receive credit, at the top of the list are "[b]ooks, monographs, chapters, essays, reviews and other scholarly work published by reputable journals, scholarly presses, and publishing houses that accept works only after rigorous professional review."

During the probationary period for tenure, the candidate receives annual evaluations, a third year comprehensive review, a fifth year review that usually coincides with a review for promotion to associate professor, and, if necessary, a subsequent sixth or seventh year review. If a candidate is not awarded tenure by the seventh year, the eighth year is the last year of the candidate's employment contract.

Dennis Krystek was hired by the political science department at USM as a visiting assistant professor in 1988. In 1989, when his one-year appointment expired, he was hired into a tenure-track position, as an assistant professor in that department. In 1991, he postponed his third year review. His evaluation for that year noted that he needed to devote more time to research. In 1992, Krystek received his third year review. In the interim, he had published a short, six-page article in the Louisiana Bar Journal. Although the article was treated as a promising sign, his evaluation nevertheless stressed his need to publish articles in order to receive tenure. In 1993, his evaluation again noted that he needed to work on publishing and that publishing should be a priority for him. In 1994, he published another six-page article with the Louisiana Bar Journal. He still had not published a full-length article or any of the other types of scholarly works listed in the College Of Liberal Arts Tenure and Promotion Policy.

In October 1994, he applied for tenure and promotion to associate professor. For a candidate in Krystek's department, the application is first reviewed by the candidate's tenured departmental faculty, then by the College Advisory Committee, the Dean of the College, the University Advisory Committee, and jointly by the Vice President for Academic Affairs and the Vice President for Research and Planning. Recommendations are made by each party that reviews the application and those recommendations and the candidate's dossier are ultimately reviewed by the President. If the President believes the candidate merits tenure, he makes that recommendation to the Board. If the Board agrees, tenure and promotion are awarded.

In Krystek's case, the department recommended him for tenure but not for promotion. The negative recommendation was based solely upon Krystek's failure to publish scholarly work. Because his department was concerned that his application for tenure would not be treated favorably at the higher levels of review, the department obtained permission from USM to give Krystek a two-year extension on his tenure-track so that he could improve his publication record.

Krystek chose not to take advantage of the two-year period to publish any significant scholarly work. Instead, a year later, in October of 1995, Krystek resubmitted his application although he had published only one piece, a two-page co-authored article in a USM public relations magazine. At that time, in his entire career at USM, indeed in his entire academic career, Krystek had published only two works that even he claimed met the requirement of being published in "reputable journals, scholarly presses, and publishing houses that accept works only after rigorous professional review." Those two articles were both six-page articles in the Louisiana Bar Journal. One article had twenty footnotes, the other sixteen.

When Krystek reapplied for tenure after only a year, and without having published a full-length article, the departmental faculty recommended against both tenure and promotion. Every other person who subsequently reviewed Krystek's application voted against both tenure and promotion with the exception of two of the five members of the College Advisory Committee, who recommended him for tenure. The President ultimately denied Krystek both promotion and tenure.

At some point during the process of Krystek's review, Krystek became convinced that the department had an ulterior motive for imposing publishing requirements on him. Krystek came to believe that the requirements were being imposed on him in order to deny him tenure because of his gender. The only potential evidence Krystek had to support his belief was a comment made by the interim dean of his department, Jerold Waltman. Because this comment provides the basis for Krystek's complaint, it is necessary to determine the evidentiary value of this comment given the situation in which it was made. We consider this comment in context of all of the testimony at trial, but viewed in a light most favorable to Krystek.

Krystek went up for tenure in 1994 and his department voted for tenure but against promotion. At that point, two of his supporters were the dean of the department, Ron Marquardt, and the interim dean, Waltman. Both voted in favor of Krystek for tenure, though both were concerned about his publishing record. Because of their concern over Krystek's publishing record and the result of the vote, Waltman and Marquardt met with Krystek to discuss ways to improve his chance for tenure. It was at this meeting that Waltman and Marquardt suggested that Krystek take a two-year extension to publish more articles. At the meeting, Marquardt also recommended that Krystek not teach over the summer but instead devote his time to writing. Krystek ultimately declined to pursue this suggestion. Finally, Marquardt and Waltman both offered to proofread any of Krystek's work and Marquardt offered to do what he could to assist Krystek in getting work published.

At this meeting, Krystek complained that another assistant professor, Kathanne Greene, had gotten tenure.

At trial, Krystek testified that Waltman responded, "That's a problem. There are different standards for males and females." Krystek further stated that Dr. Marquardt said nothing in response to this comment and that the conversation then turned to another topic. At trial, Waltman admitted to making a comment to that effect, but was unclear about whether he made that comment at the meeting with Marquardt or at some other time. Waltman did remember Krystek complaining about Greene. He testified that he recalled trying to redirect the conversation toward what Krystek needed to do to get tenure. At trial, his explanation for the remark was that he was expressing a general belief that men and women are treated differently not a belief about Krystek's treatment in this case.

Marquardt testified that he has no recollection of such a comment being made in his presence. When Marqaurdt and Waltman discovered that Krystek had made claims about discrimination on the basis of gender, both abstained from participating in any further employment decisions with respect to Krystek.

Based on Waltman's comment, Krystek concluded that two female members of the faculty were treated more favorably than he was. He believes that Gail Lucas, who was not on tenure-track, was not held to the same requirements that he was. He also believes that Greene, an assistant professor on tenure-track, was held to a lower standard regarding her research. Greene had had a full-length article accepted for publication at the time she was granted tenure, but she had not published any full-length articles while an assistant professor at USM. Before working at USM, however, Greene published her doctoral thesis as a book.

II

On March 31, 1995, Krystek filed a charge of discrimination with the EEOC, alleging that he was denied promotion and tenure because of his gender. On October 31, 1995, the EEOC issued its notice of a right to sue. On January 25,...