Kubik v. Cent. Mich. Univ. Bd. of Trs., 16-2783
| Decision Date | 30 November 2017 |
| Docket Number | No. 16-2783,16-2783 |
| Parties | SARA J. KUBIK, Plaintiff-Appellant, v. CENTRAL MICHIGAN UNIVERSITY BOARD OF TRUSTEES et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0665n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
Before: MERRITT, MOORE, and ROGERS, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Plaintiff Sara J. Kubik, a tenure-track professor who was not appointed to a new term, appeals the district court's grant of summary judgment to Defendants-Appellees Central Michigan University Board of Trustees and five individually named CMU employees on her claims of sex discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act (Title VII), 42 U.S.C. § 2000e et seq., and Michigan's Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2101 et seq. Because Kubik has not presented sufficient evidence to make out a prima facie case on any of these three claims, we AFFIRM the district court's grant of summary judgment.
Because the detailed history surrounding this case is laid out in the district court's opinion, see R. 56 (Dist. Ct. Op. & Order at 2-24) (Page ID #2444-66), we summarize it briefly here. In August 2011, Kubik was hired at Central Michigan University (CMU) to serve as a tenure-track Assistant Professor, a position requiring her to show scholarly promise and achievement under specific "academic track" criteria in order to qualify for periodic reappointment before an ultimate tenure decision. Hired into the Journalism Department, Kubik began at CMU during fall 2011 and was reappointed during fall 2012 through CMU's standard process, which includes a departmental recommendation (here, by the Journalism Department's Personnel Committee), a recommendation from the dean of the department's college, and an ultimate decision by the provost. In the course of her fall 2012 reappointment, Kubik's scholarly progress was rated as "limited," and she was advised by colleagues, the current department chair (Maria Marron, a defendant), and her dean (Salma Ghanem), to improve her scholarly output.
In January 2013, Kubik informed CMU that she was pregnant with her second child; later that spring, in light of her pregnancy, she requested a tenure extension. Kubik gave birth in April 2013. The day after she gave birth, Marron emailed Kubik to tell her that "[s]tudents [we]re expressing concern about [adjunct professors] having to grade their final projects and exams" and to ask if Kubik could do the grading herself after returning from leave.
In May 2013, the Personnel Committee denied Kubik's tenure-extension request. The following week, Marron emailed Kubik about teaching preferences for the fall semester, seemingly giving her two options, one of which would require teaching five days per week at 8:00 AM, and the other of which would require three days at 8:00 AM and another two at 5:00 PM. Between the two options, Kubik selected the one that did not go into the evening.
That September, Kubik filed a complaint with CMU's Office of Civil Rights and Institutional Equity (OCRIE), alleging discrimination in the department's refusal to grant her tenure-extension request. Later that month, the Journalism Department's Personnel Committee (which included named defendants Marron, Lori Brost, and Timothy Boudreau), met and voted to recommend against Kubik's reappointment, with members citing her limited service and scholarship. (At the time, Kubik's scholarly output was one paper at a state conference.)
In October 2013, Kubik refiled her OCRIE complaint, alleging discrimination and a hostile work environment. In November, Kubik's dean departed from the department's recommendation, and Provost Michael Gealt (another defendant) ultimately decided to reappoint Kubik. Each, however, emphasized that Kubik needed to improve her scholarship.
In April 2014, OCRIE found that Marron had created a hostile environment but that her conduct did not impermissibly affect Kubik's reappointment process. Later that month, Kubik filed a complaint with the EEOC. In late May, CMU granted her tenure-extension request.
In September 2014, the Personnel Committee met and again recommended against Kubik's reappointment. The committee also again based its decision on Kubik's lack of scholarly output and university service: Kubik had pointed, for example, to only two published pieces, one of which was a two-page, two-endnote article in the Michigan Bar Journal, and the second of which was a five-page, fifteen-endnote, co-authored draft to be published in Compliance Today. The committee meeting also featured animated discussion of Kubik's employment-discrimination complaints, which Kubik had discussed in the materials that she had submitted to the committee.
In October 2014, Kubik filed a new OCRIE complaint. In November, Dean Shelley Hinck (also a defendant) agreed that Kubik should not be reappointed, citing her lack of scholarship. In January 2015, Provost Gealt also agreed, noting that Kubik's scholarly record did "not sufficiently represent the academic standards anticipated, and required, by [the] by-laws."
Kubik brought suit in the United States District Court for the Eastern District of Michigan against CMU, alleging sex (pregnancy) discrimination, a hostile work environment, and retaliation under Title VII and the ELCRA. Kubik also named Marron, Brost, Boudreau, Gealt, and Hinck as individual defendants under the ELCRA. The district court ruled that Marron, Brost, and Boudreau could not be sued individually under the ELCRA and that Kubik had failed to establish a prima facie case for any of her claims. This appeal followed.
Kubik has raised three claims under Title VII and the ELCRA: a sex (pregnancy) discrimination claim;1 a hostile-work-environment claim; and a retaliation claim.2 This appealrequires us to decide whether the trial court was correct that Kubik could not make out a prima facie case on any of these three claims. We affirm.3
We review a grant of summary judgment de novo. Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 381 (6th Cir. 2017). We are required to "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine issue of material fact exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In undertaking this review, we "must credit all evidence presented by the nonmoving party and draw all justifiable inferences in that party's favor." In re Rodriguez, 487 F.3d 1001, 1007 (6th Cir. 2007).
Kubik asserts a claim of sex discrimination based on circumstantial evidence. See Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). "Title VII single-motive claims proceeding on circumstantial evidence are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and later modified by Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)." Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006). Michigancourts apply the same, three-step test. Hazle v. Ford Motor Co., 628 N.W.2d 515, 520-21 (Mich. 2001). Under this framework, plaintiffs must first establish "by the preponderance of the evidence a prima facie case," at which point "the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason'" for the adverse action asserted. Burdine, 450 U.S. at 252-53 (quoting McDonnell Douglas Corp., 411 U.S. at 802). If the defendant can do so, the burden shifts back to the plaintiff to "prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. at 253. "On a motion for summary judgment, a district court considers whether there is sufficient evidence to create a genuine dispute at each stage of the McDonnell Douglas inquiry." Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000).
In general, a plaintiff establishes a prima facie case by showing that "(1) he or she was a member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees." Wright, 455 F.3d at 707 (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)). In the specific context of pregnancy-discrimination claims, we have stated the test slightly differently, directing a plaintiff to show "that 1) she was pregnant, 2) she was qualified for her job, 3) she was subjected to an adverse employment decision, and 4) there is a nexus between her pregnancy and the adverse employment decision." Cline, 206 F.3d at 658. Here, the district court applied the standard-issue McDonnell Douglas test, ruling that Kubik could not satisfy its first prong (protected-class membership) for either the department's 2013 recommendation not to reappointher or CMU's 2014 decision not to reappoint her because "Kubik's pregnancy was too attenuated in point of time" from either event. R. 56 (Dist. Ct. Op. & Order at 29, 31) (Page ID #2471, 2473).
The gap between the end of Kubik's pregnancy and the first vote against her reappointment was only five months. We do not think that a gap of five months presents an insuperable bar for a plaintiff alleging pregnancy discrimination, but we do not see sufficient evidence to support such a claim here. When we have looked to a time gap for evidence of discrimination, we have looked...
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