Meiners v. University of Kansas
| Decision Date | 16 September 2002 |
| Docket Number | No. CIV.A. 01-2354-KHV.,CIV.A. 01-2354-KHV. |
| Citation | 239 F.Supp.2d 1175 |
| Parties | Karin Pagel MEINERS, Ph.D., Plaintiff, v. UNIVERSITY OF KANSAS, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Alan V. Johnson, Stephen D. Lanterman, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, for plaintiff.
Rose A. Marino, Barbara L. McCloud, Office of General Counsel, Lawrence, KS, for defendants.
Karin Pagel Meiners, Ph.D. brings suit against her former employer, the University of Kansas, alleging that it retaliated against her on account of protected activity in violation of Title VII, 42 U.S.C. § 2000e et seq., and denied her due process of law in violation of 42 U.S.C. § 1983. The matter is before the Court on defendants' Motion For Summary Judgment Against Plaintiff Pagel Meiners (Doc. #41) filed May 6, 2002 and Plaintiffs Motion For Leave To File A Supplemental Memorandum In Opposition To Defendant's [sic] Motion For Summary Judgment (Doc. # 50) filed July 19, 2002. For reasons stated below, the Court sustains both motions.
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.1
In August 1992, plaintiff signed a written notice of appointment and began working for the University of Kansas as a probationary tenure-track assistant professor for the academic year which ran from August 1992 to May 1993. In pertinent part, plaintiffs employment contract stated that "subject to all provisions of the laws of Kansas and of the regulations, policies, minutes and resolutions of the Board of Regents and of the University of Kansas," the University offered plaintiff an appointment as Assistant Professor of Germanic Languages and Literature for the academic year beginning August 17, 1992. Exhibit 1 in Exhibits In Support Of Defendants' Motion For Summary Judgment ("Defendants' Exhibits") (Doc. # 43) filed May 6, 2002. The contract acknowledged that "in accordance with the regulations of the Board of Regents and of the University," plaintiffs appointment could lead to review for permanent tenure. It stipulated that final tenure review and decision would occur no later than the sixth year of full time teaching and that tenure would accrue after seven years of full time teaching unless notice to the contrary was provided in accordance with University and Board of Regents regulations on advance notice of non-reappointment. Id.
Robert Hemenway, Chancellor of the University, has the final decision whether to grant promotion and tenure. David Shulenburger, University Provost, oversees all matters relating to academic affairs. He is responsible for granting leave to tenure-track faculty members and independently recommends to the Chancellor whether promotion and tenure should be granted. Since 1993, the Chancellor has always followed Provost recommendations on those issues.
The Kansas Board of Regents is the governing body of the University, which is subject to Board of Regents rules, regulations and policies, and which derives most of its authority from the Board of Regents. Since 1947, the Board of Regents has adopted written rules, regulations and policies which govern tenure.
In 1992, when plaintiff received her initial appointment, the rules, regulations and policies on tenure were contained in the University's Handbook For Faculty And Other Unclassified Staff (1990 ed.) ("Handbook"). The Handbook contained tenure regulations which the Board of Regents had approved in 1947, based on the 19&0 Statement of the American Association of University Professors ("1940 AAUP Statement"), and amended in 1980, 1981 and 1982.2 The Handbook set forth the Board of Regents' tenure regulation, which generally provided that "[a]fter the expiration of a probationary period, teachers ... should have permanent or continuous tenure, and their services should be terminated only for adequate cause," and specifically provided that "[b]eginning with appointment to the rank of full-time instructor ... the probationary period should not exceed seven years, including within this period full-time service in all institutions of higher education." Exhibit 4 in Defendants' Exhibits (Doc. # 43) at 40-41. Additionally, the 1990 version of the Handbook, which was in effect when plaintiff received her initial appointment, stated that "[p]art-time service to the University in teaching, research, and administration does not count toward tenure." Id. at 42. The Handbook was revised in 1997, and it again stated that "[p]art-time service to the University ... does not count toward tenure." Exhibit 30 in Defendants' Exhibits (Doc. # 43) at 61.
The Handbook also contained Board of Regents rules, regulations and policies governing notice for the non-reappointment of faculty members. In relevant part, those policies provided that "[p]rior to the time that a faculty member attains continuous tenure, termination may be effected by administrative action, provided timely notice is given." Exhibit 4 in Defendants' Exhibits (Doc. # 43) at 43. In plaintiffs case, the University was required to send notice of non-reappointment at least twelve months before the expiration of her probationary period.3
The Provost testified that consistent with AAUP guidelines, the University must decide at the end of a faculty member's sixth year of full time service whether to terminate the employment relationship or grant tenure. He explained that the "six-year period of time gives you the opportunity to look at performance and make judgments about the future so that you don't make a wrong decision when you move someone into a permanent faculty position." Deposition Of David E. Shulenburger (Exhibit 5) in Plaintiffs Appendix (Doc. #47) at 50:6-12. A tenured faculty member may only be terminated after a hearing.
Effective April 24, 1997, the University adopted a written policy on interruption of the probationary period for tenure-track faculty members. It generally provided that time on family and medical leave, nonscholarly leave without pay, and part time appointments might be excluded from the seven-year probationary period.4 The policy expressly stated that upon request faculty on full time leave under the Family and Medical Leave Act for three consecutive months would receive an extension of the tenure clock for one year. In addition, the policy expressly stated that part time service did not count toward tenure.5
In August 1993, the State of Kansas had a policy which implemented the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615, for all state employees.6
In March of 1994, plaintiff requested and received part time FMLA leave to care for her three-month old child. Plaintiffs leave consisted of a 40 per cent reduced work schedule from August 22 to December 8, 1994, which plaintiff covered by using 173.5 hours of paid sick leave and 62.9 hours of unpaid leave, for a total of 5.97 work weeks.7 The Provost testified that a faculty member on paid sick leave continues to be on full time service.8
In July 1994, after the University approved plaintiffs request for FMLA leave but before the leave commenced, plaintiff received an annual notice of continuing appointment for the 1994-95 academic year. Then-Chancellor Gene Budig signed the notice, which stated that plaintiffs appointment was "1.00 FTE."9 Chancellor Hemenway testified that according to University custom and practice, the notice of continuing appointment will note if a faculty member is not on full time appointment for a given semester or year.
On February 10, 1995, Dr. Keel wrote a letter to Shulenburger, who was then Vice Chancellor of Academic Affairs, stating that for FMLA leave plaintiff had been permitted to reduce her appointment by 60 per cent in the fall semester of 1994 but that she had resumed full time duties. The letter did not request an extension of the date for plaintiffs mandatory tenure review. On March 15, 1995, however, Shulenburger notified plaintiff that her period of part time service did not count toward the seven-year probationary period and that the date of plaintiffs mandatory tenure review had been adjusted to reflect that change of status. Shulenburger specifically advised plaintiff that her review would occur no later than the 1998-1999 academic year. Shulenburger Letter (Exhibit 3) in Defendants' Exhibits (Doc. #43).
On March 3, 1997, plaintiff requested a 40 per cent reduction in her appointment for the fall semester of 1997 because of her husband's death. She conferred with Dr. Keel and at that time she understood that "taking this reduction will automatically postpone the mandatory review by one year." Pagel Letter (Exhibit 6) in Defendants' Appendix (Doc. # 43). On March 28, 1997, the Provost approved plaintiffs request and again advised her that University regulations did not count part time service toward the probationary period.10
In the spring of 1996, plaintiff received a pre-tenure review. During the 1999-2000 academic year, the University considered plaintiff for tenure and promotion to associate professor. It decided to deny tenure and promotion, however, and in March of 2000 plaintiff received a notice of nonreappointment and a terminal contract for the 2000-2001 academic year. In September 2000, plaintiff made a self-nomination for promotion and tenure, asking the University to rescind its notice of non-reappointment.
As a result of her terminal contract, plaintiff was no longer eligible for membership on the graduate faculty. Plaintiff had one graduate student...
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