Lee v. New Mexico State University Bd. of Regents

• Decision Date: 11 July 2000
• Docket Number: No. Civ. 97-944 MV/LCS.,Civ. 97-944 MV/LCS.
• Citation: 102 F.Supp.2d 1265
• Parties: Sandra LEE, Plaintiff, v. NEW MEXICO STATE UNIVERSITY BOARD OF REGENTS, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

102 F.Supp.2d 1265

Sandra LEE, Plaintiff, v. NEW MEXICO STATE UNIVERSITY BOARD OF REGENTS, et al., Defendants.

No. Civ. 97-944 MV/LCS.

United States District Court, D. New Mexico.

July 11, 2000.

COPYRIGHT MATERIAL OMITTED

Chris S. Key, Albuquerque, NM, for Sandra Lee, plaintiff.

Raul A. Carrillo, Jr., Thomas A. Sandenaw, Jr., Las Cruces, NM, Carlos M. Quinones, Wal-Mart Stores, Inc, Wal-Mart Legal Team, Bentonville, AR, for New Mexico State University Board of Regents, defendant.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER comes before the Court on Defendants' Motion for Summary Judgment Regarding Retaliatory Discharge, filed December 10, 1999 [Doc. No. 53]. The Court, having considered the briefs, relevant law and being otherwise fully informed, finds that the Motion for Summary Judgment is not well taken and will be DENIED as explained below.

FACTUAL BACKGROUND

The Court finds the following material facts to be undisputed:¹

1. Plaintiff Sandra Lee was employed by the New Mexico State University (NMSU) at its Dona Ana Branch Community College (DABCC) as an assistant professor teaching English in the Developmental Studies Division.

2. Plaintiff was placed on a tenure track position calling for annual reviews between 1989 and 1994 and a tenure track decision in 1995.

3. For the first three years of her employment, Plaintiff was under the supervision of the Developmental Studies Division Head, Monica Torres. On the annual supervisor's evaluations for the first three years of tenure review (1989, 1990, 1991) Plaintiff met all 28 evaluated standards, exceeded standards on three rating categories, and was not rated as needing improvement in any category.

4. Commencing in 1992, Plaintiff was under the supervision of Ann Rehovec, the new Developmental Studies Division Head. That year Plaintiff was rated by Ms. Rehovec as meeting standards in all 28 evaluation categories and exceeding standards in five categories. She was not rated as needing improvement in any category. As to concerns, the evaluation noted "none at this time." In the 1993 annual review performed by Ms. Rehovec, Plaintiff was rated as meeting standards in 24 categories, exceeding standards in 4 categories and needing improvements in no categories.

5. The performance evaluation form states "[s]upervisor will provide narrative comments addressing strengths and weaknesses in the area of teaching, professional service and other service. Areas of concern must be accompanied by relevant suggestions for improvement." In 1989, then-supervisor Monica Torres suggested that Plaintiff "get additional training in composition theory and practice" and "develop workshops ... to disseminate information to her peers." In 1990, Monica Torres suggested that Plaintiff participate in activities aimed at composition theory and collaborative learning. In 1991, Monica Torres suggested that Plaintiff attend a national conference. In 1992, the recommendation to attend a national conference in Plaintiff's discipline was again raised. There is a dispute of fact as to whether or not Plaintiff complied with or heeded the recommendations and suggestions. For instance, in response to the 1989 recommendation to "get additional training in composition theory and practice," Plaintiff subsequently took several courses which she alleges concentrated heavily on the theories and practices of composition pedagogy. Defendants dispute that the courses taken by Plaintiff adequately focused on composition pedagogy. Plaintiff also states that she did not attend national conferences in 1991 and 1992 due to the demands of raising a small child. She did, however, attend a national conference in 1994. With regard to Defendants' contention that Plaintiff did not work actively with her peers and colleagues, Plaintiff was commended in several of her annual recommendations for her active involvement in professional associations. Plaintiff was also praised for her favorable student evaluations, her instructional skills and the innovative collaborative learning techniques she was utilizing in the classroom.

6. In August 1994, a position for an English Coordinator opened up at DABCC. Two males were interviewed for the position including the successful candidate, Dr. Aubrey Kline. Plaintiff was not offered an interview for the position, although she contends that she was at least as qualified as one of the candidates interviewed. She allegedly was informed by her supervisor Ms. Rehovec that enough women faculty were employed in coordinator positions. Plaintiff concedes that the candidate ultimately chosen had superior credentials to her own.

7. In September 1994, Plaintiff filed an EEOC complaint alleging gender discrimination for the failure to interview her for the English Coordinator position. No claims were pursued by Plaintiff or the EEOC regarding the alleged gender discrimination.

8. After filing the 1994 EEOC charge, Plaintiff alleges that she was subject to a series of retaliatory actions by her supervisor, Ms. Rehovec. Specifically, Plaintiff alleges that she was subject to heightened scrutiny by her supervisor and others, differential treatment and unfair criticism. The retaliation eventually culminated in a negative tenure recommendation, the denial of Plaintiff's tenure application, an adverse salary action, and finally, the termination of her employment.

9. Within days of the EEOC filing, Ms. Rehovec ordered that Plaintiff's student papers be shredded, contravening standard university practice of letting the papers remain for the academic year. Plaintiff also alleges that she was subject to heightened supervision following the filing of the EEOC charge. Ms. Rehovec began documenting the times when Plaintiff missed or was late to a meeting. In December, 1994, when Plaintiff missed a meeting due to commitments at a prison project facilitated by the university, Ms. Rehovec requested verification that Plaintiff was indeed unavoidably delayed at the prison. Ms. Rehovec also began questioning Plaintiff's teaching assignments at the prison, noting scheduling difficulties despite the fact that the schedule had previously been approved by Ms. Rehovec. No other employee was subject to similar treatment.

10. In the 1994 Annual Faculty Performance Report completed by Ms. Rehovec, Plaintiff was rated as meeting standards in 22 categories, exceeding standards in three categories, and for the first time, needing improvement in two categories.² In addition, the 1994 evaluation completed by Ms. Rehovec raised a number of criticisms going back to 1989 — a time when Ms. Rehovec was not employed as Plaintiff's supervisor. Ms. Rehovec compiled this evaluation by reviewing Plaintiff's past evaluations. There is a dispute of fact whether the suggestions and recommendations raised in these past evaluations had been fully addressed by Plaintiff. No other employee received an annual evaluation which engaged in this scrutiny of past evaluations.

11. After receiving a draft of the 1994 evaluation, Plaintiff filed a second EEOC charge claiming retaliation for filing the initial EEOC charge. The matter of the 1994 evaluation was taken to mediation. Plaintiff pointed out that while Ms. Rehovec had referenced the prior annual evaluations, she had not reviewed Plaintiff's responses addressing the concerns raised in those evaluations. As a result of the mediation the evaluation was eventually amended to be more favorable to Plaintiff. Nonetheless, the "needs improvement" rating in two categories remained.

12. Following the filing of her second EEOC charge, Plaintiff was subject to even closer supervision as demonstrated by a series of memoranda and notes documenting the times when Plaintiff was moments late for a meeting, left a meeting for a few minutes or was absent from a meeting. Such documentation was kept in a special file. For example, on March 9, 1995, Ms. Rehovec created a memorandum stating "example of habit Ms. Lee has of having class during meeting time: 4 trips to room 7: in a two-hour class period." Some of Plaintiff's co-workers were also asked by Ms. Rehovec to give informal evaluations of Plaintiff. Notwithstanding this close monitoring, Plaintiff's attendance was comparable to that of her fellow employees.

13. Plaintiff also alleges that Ms. Rehovec retaliated by submitting incomplete transcripts to Professor Dasenbrock when asking him to evaluate Plaintiff's qualifications to teach a certain English class. Based upon the incomplete transcripts, Professor Dasenbrock wrote a memorandum concluding that Plaintiff was not qualified to teach the English course. This document was later used by Ms. Rehovec as evidence of Plaintiff's inadequate qualifications.

14. Under the tenure recommendation and review process at NMSU and DABCC, a tenure applicant must go through several stages of review. First, the applicant's direct supervisor (Ann Rehovec) drafts a recommendation. Then the applicant's credentials are reviewed by the Promotion and Tenure ("P & T") Committee. The P & T Committee then makes its recommendation to the Campus Director (Dr. Jim McLaughlin). The Campus Director then makes his recommendation to the Dean of the College of Human and Community Services (Virginia Higbie). The Dean then makes her recommendation to the Executive Vice-President (William Conroy), who makes his recommendation to the President of NMSU (Michael Orenduff). Based on all these recommendations, the President of NMSU issues the final tenure decision. The applicant then has the opportunity to appeal an adverse tenure decision to an independent Appeals Board.

15. In each year between 1989 and 1994, the P & T Committee had rated Plaintiff as meeting all standards toward a grant of tenure. In 1995, when Plaintiff came up for tenure review, the P & T Committee unanimously recommended in favor of tenure.

16. On October 3, 1995, Ms. Rehovec gave Plaintiff a negative tenure recommendation....