Kubik v. Cent. Mich. Univ. Bd. of Trs.
| Decision Date | 28 November 2016 |
| Docket Number | Case No. 15–cv–12055 |
| Citation | 221 F.Supp.3d 885 |
| Parties | Sara J. KUBIK, Plaintiff, v. CENTRAL MICHIGAN UNIVERSITY BOARD OF TRUSTEES, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Kathleen L. Bogas, Law Offices of Kathleen L. Bogas, PLLC, Bingham Farms, MI, for Plaintiff.
Anne–Marie Vercruysse Welch, Clark Hill PLC, Birmingham, MI, Robert M. Vercruysse, Clark Hill, Detroit, MI, for Defendants.
Plaintiff Sara J. Kubik brought suit against the Central Michigan University Board of Trustees ("CMU") and several members of the faculty and university administration on June 5, 2015. ECF No. 1. Plaintiff contends that CMU refused to reappoint her as a tenure-track professor in the Journalism Department and took other discriminatory action because she became pregnant. The Complaint alleged four counts: sex/pregnancy discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. ; sex discrimination under the Elliot Larsen Civil Rights Act ("ELCRA"), M.C.L. 37.2101, et seq. ; pregnancy discrimination under the ELCRA; and retaliation in violation of both Title VII and the ELCRA. On March 8, 2016, the parties stipulated to the dismissal of all of Plaintiff's claims under Title VII against the individual defendants. ECF No. 30. At the close of discovery, Defendants filed a motion for summary judgment. ECF No. 41. For the reasons stated below, Defendants' motion for summary judgment will be granted.
Sara Kubik was hired by CMU on August 15, 2011, as a tenure-track assistant professor in the Journalism Department. Offer Letter, ECF No. 52, Ex. 1. Faculty members in the Journalism Department are hired onto one of two "tracks": the traditional academic track and the distinguished media professional track. Journalism Dep. Bylaws at 22, ECF No. 52, Ex. 47. Kubik was hired onto the academic track. Rec. Against Reappointment 2016–2017, ECF. No. 52, Ex. 50. Defendant Maria Marron was the Department Chair for the Journalism Department from 2011 until early 2014, when she accepted a position at the University of Nebraska–Lincoln. Resignation Letter, ECF No. 41, Ex. 27. Defendants Lori Brost and Timothy Boudreau are tenured professors in the Journalism Department. Oct. 2014, OCRIE Compl. at 2, ECF No. 52, Ex. 58. Defendant Michael Gealt is the Executive Vice President and Provost of CMU. Personnel Rec. for 2015–2016 Term, ECF No. 52, Ex. 25. Defendant Shelly Hinck was the Interim Dean of CMU's College of Communications and Fine Arts during the fall of 2014. Rec. Against Reappointment, ECF. No. 52, Ex. 50.
The CMU Faculty have entered into a Collective Bargaining Agreement (CBA) with the University. 2011–2014 CBA, ECF No. 52, Ex. 13; 2014–2019 CBA, ECF No. 41, Ex. 2. The 2011–2014 Collective Bargaining Agreement between CMU and the CMU Faculty Association provides policies for reappointment and tenure decisions at CMU. 2011–2014 CBA, ECF No. 52, Ex. 13.1 Tenure, of course, is the employment status that "protects academic employees from dismissal absent serious misconduct, incompetence, or financial exigency." Robert J. Tepper & Craig G. White, Speak No Evil: Academic Freedom and the Application of Garcetti v. Ceballos to Public University Faculty , 59 Cath. U.L. Rev. 125 (2009). According to the CMU CBA, 2014–2019 CBA at 29–30, ECF No. 41, Ex. 2. Because a primary purpose of tenure is to protect faculty from chilling oversight or censorship by the administration,2 tenure decisions are made primarily by the academy, with later review by the administration.3
The CMU Faculty Union entered into a CBA with CMU which governs tenure and reappointment decisions, and this Court must be careful not to disturb the balance between academic freedom and academic excellence reflected in that CBA. As a faculty member, Kubik agreed to subject herself to the CBA procedures and standards for reappointment.
Specifically, departments are instructed to develop standards for analyzing the following bases of achievement: teaching, scholarly and creative activity, and university service, "which may be supplemented by professional service or public service." Id. at 24. Likewise, the department should consider the "promise of a bargaining unit member," which includes the member's "potential for professional growth and development" as well as whether "the bargaining member will contribute to the goals and objectives established by the department." Id. The department should also consider whether the university is likely to have a future need for the member. Id.
Once initially hired, a new member of the faculty generally receives an initial appointment of two years. Id. at 26. The non-tenured faculty member is thereafter considered for reappointment on a yearly basis, until the tenure decision is made. Id. Reappointment requires a two-thirds favorable vote. If a faculty member is not reappointed, the CBA requires CMU to notify that faculty member of the non-reappointment at least twelve months in advance of the expiration of the current appointment term. Id. at 27.
Tenure consideration happens at different times, depending on the faculty member's rank when originally appointed. Id. at 28. Faculty members appointed as assistant professors, like Kubik, are typically considered for tenure during their eleventh semester of employment at CMU. Id. However, sometimes "[c]ircumstances may make it necessary to delay consideration for the grant of tenure." Id. Those circumstances include "extended absence or disability due to illness or injury, acute family/personal responsibilities (including child care or the birth or adoption of a child), ... and unexpected delays in scholarly achievement due to circumstances beyond the control of the bargaining unit member." Id.
Decisions regarding reappointment and tenure occur in several stages. First, the faculty member's department makes a recommendation, based on the department's existing standards. Id. at 32. The department's recommendation is then forwarded to the dean in charge of the department. Id. at 32–33. The dean, applying the department's criteria and standards, considers the department's recommendation and then "renders an independent judgment." Id. at 33. The dean's recommendation is then forwarded to the university Provost Id. The Provost likewise applies the department's standards and makes an independent decision regarding whether the faculty member should be reappointed or granted tenure. Id. at 34.
In compliance with the CBA, the Journalism Department has promulgated bylaws which establish standards and criteria for reappointment and tenure decisions. First, "[a] faculty member will be evaluated for reappointment, tenure, and promotion primarily according to the ‘track’ on which the initial appointment was made." Journalism Dep. Bylaws at 22. Regardless of the track, however, the department evaluates applicants based on the three areas identified in the CBA: teaching, scholarly and creative activity, and university service. Id. The faculty member applying for reappointment or tenure has the responsibility of providing evidence of accomplishment in each area.
Relevant teachings activities include teaching courses, advising students, writing student recommendations, participating in student conferences and workshops, and receiving teaching awards. Id. at 23. Evaluation of a faculty member's scholarly activities depends on the track onto which that member was appointed. Id. at 24. According to the bylaws, "[t]he majority of the candidate's work will relate to that track." Id. The bylaws explain that scholarly and creative activities are expected to "be refereed or juried using a system in which expert referees are invited or employed to evaluate the merits of the material or activity." Id. at 25. The bylaws provide examples of academic track material and professional track material. Academic track material includes:
Professional track material includes:
The bylaws also include examples of scholarly activities that are not track-specific: presenting papers at academic organizations, presenting papers at professional organizations, performing speeches and presentations, receiving grants or awards, or serving as a referee or reviewing for a publisher of academic or professional materials. Id. at 25–26.
The candidate bears the burden of providing of the quality and relevance of the scholarly activities. Id. at 26. The bylaws also provide standards for "assessing the quality of scholarly and creative activities." Id. Specifically, the review should consider the "reputation of the academic or professional publications," the "scope (whether international, national, regional,...
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