Meiners v. University of Kansas

• Decision Date: 24 February 2004
• Docket Number: No. 02-3376.,02-3376.
• Citation: 359 F.3d 1222
• Parties: Dr. Karin Pagel MEINERS, Ph.D., Plaintiff-Appellant, v. UNIVERSITY OF KANSAS, Chancellor Robert Hemenway, in his official capacity, and Provost David Shulenburger, in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

359 F.3d 1222

Dr. Karin Pagel MEINERS, Ph.D., Plaintiff-Appellant, v. UNIVERSITY OF KANSAS, Chancellor Robert Hemenway, in his official capacity, and Provost David Shulenburger, in his official capacity, Defendants-Appellees.

No. 02-3376.

United States Court of Appeals, Tenth Circuit.

February 24, 2004.

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Alan V. Johnson, Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C. (Stephen D. Lanterman, Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., with him on the brief); Topeka, KS, for Plaintiff-Appellant.

Barbara L. McCloud, Special Assistant Attorney General and Associate General Counsel, Univeristy of Kansas; Lawrence, KS, for Defendants-Appellees.

Before SEYMOUR, McKAY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

The plaintiff, Dr. Karin Pagel Meiners, Ph.D., appeals the district court's grant of summary judgment to the defendants on all her claims. Dr. Meiners sued her former employer, the University of Kansas, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that she was denied tenure in retaliation for her filing of discrimination complaints. She also sued the University's Chancellor and Provost, in their official capacities, under 42 U.S.C. § 1983 for depriving her of property without due process. We have jurisdiction under 28 U.S.C. § 1291.

Dr. Meiners was a German literature professor at the University of Kansas who was denied tenure and terminated from her teaching job. During her tenure run, Dr. Meiners decided to work part-time during two different fall semesters so that she could attend to family obligations. Each time, the University responded by extending her probationary period by one year, thereby delaying the final tenure review by a total of two years. Although Dr. Meiners had notice of the extensions and did not object to them at the time, she now claims that extending her probation by two years violated her contract with the University. The University, she insists, was required to conduct its tenure review a year earlier than it did, and its failure to do so entitles her to tenure by default. When the University refused to grant her tenure by default, Dr. Meiners sued, claiming that the University's refusal violated Title VII and § 1983. We find no merit to Dr. Meiners's claim of entitlement to tenure and accordingly AFFIRM the district court's judgment.

I. Background

In February, 1992, Dr. Meiners received a job offer from the University of Kansas as a tenure-track assistant professor in the Department of Germanic Languages and Literature. The offer letter stated that the appointment was subject to annual renewal and that it might lead to review for permanent tenure. The letter "stipulated" that final tenure review would occur no later than Dr. Meiners's sixth year of full-time teaching at the University. Appellant's App. 48. The letter also stated that "[t]enure will accrue after 7 years of full-time teaching (or library service) unless notice to the contrary is provided in accordance with University and Board of Regents regulations." Id. Dr. Meiners signed the offer and began teaching at the University in August of 1992.

In March, 1994, Dr. Meiners requested part-time leave for the coming fall semester under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615, in order to care for her young child. University policy specifically allowed FMLA leave on a part-time basis and guaranteed that the employee would be returned to the same or equivalent position upon return.

Dr. Meiners received approval of her FMLA leave request from her department chair, Dr. William Keel, at the end of March, 1994. The leave consisted of a 40 percent reduced work schedule from August 22 to December 8, 1994. Dr. Meiners covered the majority of her time off by using 173.5 hours of paid sick leave that she had accumulated, but the remaining 62.9 hours were unpaid leave. Before the semester began, Dr. Meiners received her annual notice of continuing appointment for the 1994-95 academic year. Although Dr. Keel had already approved Dr. Meiners's request for a reduced appointment for fall semester, the notice indicated that the appointment was full-time and made no mention of the FMLA leave.

In February of 1995, after Dr. Meiners had returned to full-time duties, Dr. Keel wrote a letter to Defendant David Shulenburger, who was then Vice-Chancellor for Academic Affairs, informing him that he had permitted Dr. Meiners to reduce her appointment to 60 percent of full-time during the fall semester. Mr. Shulenburger then wrote a letter to Dr. Meiners stating that, due to her reduced appointment, the date of her mandatory tenure review had been moved back by one year. The letter also pointed out that part-time service did not count toward the probationary period. Mr. Shulenburger's letter specifically advised Dr. Meiners that her tenure review would take place no later than the 1998-1999 academic year.

During the academic year of 1995-1996, the Tenure Committee of Dr. Meiners's department conducted a pre-tenure review to assess her probability of achieving promotion and tenure. The committee concluded that Dr. Meiners's record of teaching and service was satisfactory, but her research productivity was inadequate. The review advised Dr. Meiners that she would be unlikely to receive promotion and tenure unless she published some of her research.

In March, 1997, Dr. Meiners requested another 40 percent reduced appointment for fall semester of 1997 due to the death of her husband. In her request, she wrote, "It is also my understanding that taking this reduction will automatically postpone the mandatory tenure review by one year." Appellant's App. 55. Provost Shulenburger approved this request. His approval letter again advised Dr. Meiners that her reduced appointment would extend the tenure clock by one year because, under University regulations, part-time service did not count toward the probationary period. The letter stated that the mandatory tenure review would occur no later than the 1999-2000 academic year.

The University considered Dr. Meiners for tenure and promotion to associate professor during the 1999-2000 academic year, as promised. The University decided not to grant tenure. In March, 2000, Dr. Meiners received a notice of non-reappointment and a terminal contract for the subsequent academic year.

In September, 2000, Dr. Meiners filed a complaint against the University with the Kansas Human Rights Commission ("KHRC"). Dr. Meiners alleged before the KHRC that she had been discriminated against continuously since she began working for the University in 1992. The KHRC dismissed the complaint on January 31, 2001.

Because Dr. Meiners was denied tenure, she was, beginning in the fall of 2000, no longer eligible for graduate faculty status. However, it came to the attention of Dr. Keel that a graduate student had already enrolled to do graduate work under Dr. Meiners's supervision. Dr. Keel therefore requested that Dr. Meiners's graduate faculty status be continued for the fall semester of 2000. The University approved the request in October. In December, the Provost informed Dr. Meiners that, if she wished to retain graduate faculty status past the fall semester, the request must originate with her department. Dr. Meiners then asked Dr. Keel for an additional extension of her graduate faculty status, and he agreed to present her request to the Department's tenure committee. The committee unanimously decided not to endorse the request, and Dr. Meiners was so informed on January 19, 2001.

On February 6, 2001, Dr. Meiners filed a complaint against the University with the Equal Employment Opportunity Commission. The EEOC complaint alleged that the University had denied tenure to Dr. Meiners on account of her sex and her opposition to the University's discriminatory practices. Dr. Meiners further alleged that the University's mishandling of her tenure application, failure properly to handle her appeal of the tenure denial, alteration of terms of her employment, revocation of her graduate faculty status, and refusal to accept her medical leave request were all elements of a pattern of discrimination and retaliation against her by the University. The EEOC found no violations of any non-discrimination statute by the University and dismissed the complaint in April, 2001.

On May 4, Dr. Meiners wrote a letter to the Provost in which she claimed, for the first time, that she was entitled to tenure by default. In the letter, Dr. Meiners confirmed that she had twice taken a 60 percent appointment for the fall semester, but that the corresponding extension of her probationary period by two years was an error:

In my third year (1994-1995), I was granted a reduced appointment (60%) as maternity leave for the Fall Semester under the federally mandated Family and Medical Leave Act. This reduced appointment stopped the tenure clock for one year.... [T]he Fall Semester 1997 was granted under a similar arrangement as the maternity leave (reduced appointment at 60%). This stopped the tenure clock for another year and moved the tenure review to the Fall Semester 1999. One is, of course, happy for as much time as possible before the review, but this second exten[s]ion appears to be an administrative error.

Appellant's App. 58. Dr. Meiners then pointed out that she had returned to full-time work in both of the spring semesters following her reduced appointments. The "error," according to the letter, was that the two full-time semesters following the part-time semesters should have been counted as one year of full-time teaching and that therefore the University should only have extended the probationary period by one year. Thus, according to Dr Meiners's calculation, the probationary period expired in May of 2000. Because she had not received notice of non-reappointment 12 months prior to that date, she...