Zwick v. Univ. of S. Fla. Bd. of Trs.
| Decision Date | 06 April 2020 |
| Docket Number | CASE NO. 8:18-cv-1575-T-23AAS |
| Citation | 505 F.Supp.3d 1317 |
| Parties | Tamara ZWICK, Plaintiff, v. UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Christopher D. Gray, Scott L. Terry, Wolfgang M. Florin, Florin Gray Bouzas Owens, LLC, Lutz, FL, for Plaintiff.
Thomas M. Gonzalez, Nathan J. Paulich, GrayRobinson, PA, Tampa, FL, for Defendant.
The University of South Florida hired Tamara Zwick, a woman with multiple sclerosis, as an assistant professor in the history department. Because Zwick allegedly failed to satisfy tenure requirements and forbore applying for tenure, USF — as the collective bargaining agreement requires — discharged Zwick on April 24, 2014. Zwick sues (Doc. 1) the University of South Florida Board of Trustees and alleges that, during her employment with USF's history department, USF discriminated against Zwick (1) on the basis of her disability, (2) on the basis of her sex, and (3) in retaliation to Zwick's complaining about discrimination.1 USF moves (Doc. 34) for summary judgment on each count and insists that the reasons for Zwick's termination were legitimate and non-discriminatory.
When USF hired Zwick in August 2005, Zwick began a six-year tenure track. According to the terms of the collective bargaining agreement (CBA), "[b]y the end of six (6) years at the University, an employee eligible for tenure shall either be awarded tenure by the Board of Trustees or given notice that further employment will not be offered." (Doc. 35-10 at 9) Despite this six-year timeline, the CBA provided that the "tenure clock may be stopped for medical or related reasons for up to one (1) year upon the request of the employee and the recommendation of the supervisor and dean ... and upon approval of the appropriate administrator." (Doc. 35-10 at 9)
Before accepting a position with USF, a doctor diagnosed Zwick with multiple sclerosis
(MS). (Doc. 46 at 2) Although Zwick was scheduled to "come up for tenure" in August of 2011, Zwick requested, and USF granted, four "medical leaves" because of her MS.2 USF provided Zwick with an extension of the time within which to obtain tenure during each of these several absences. Despite these extensions, Zwick alleges that USF subjected her to discrimination during her work in the history department. Specifically, the discrimination that Zwick alleges occurred through action (and inaction) by Dr. Fraser Ottanelli, Associate Dean Elizabeth Bell USF, and other USF officials.
Tenure application at USF comprises seven levels of review — three from within a department and four from without.3 At each level of review, a professor's research, teaching, and service is considered and rated. To obtain tenure in the history department, "a faculty member must demonstrate outstanding performance in either teaching or scholarship, at least a strong performance in the other, plus a satisfactory performance in service." (Docs. 40-10 at 2, 46 at 2, 35 at 3) Regarding research, the standard expectation in the history department was the publication of a scholarly monograph (along with other scholarly publications and peer-reviewed articles). (Docs. 38 at 47, 35 at 172, 40-11 at 3, 40-13, 40-14, 35-14 at 2–5) Nevertheless, the parties dispute whether obtaining tenure unconditionally requires an applicant to publish a monograph. (Doc. 46 at 3; Doc. 34 at 4)
After Zwick worked with the history department for two years, Ottanelli became the chair of the history department, an appointment that Ottanelli retained until after Zwick's departure from USF. (Doc. 1 at 3) Zwick alleges that from 2007 to 2012, Ottanelli subjected her to discrimination. In particular, Zwick alleges that Ottanelli remarked — offensively — about his sexual life4 ; inappropriately commented on Zwick's appearance5 ; told Zwick's colleagues that "she was ‘crazy’ and that she would never receive tenure"; disclosed Zwick's MS diagnosis to faculty and students despite Zwick's requests for privacy; discouraged students from working with Zwick and "told colleagues that [Zwick] was faking her disability so that [Zwick] could receive favorable treatment"; spread rumors about Zwick's sexual relationship with her husband6 and spread rumors that Zwick's "physician provided Professor Zwick [FMLA] paperwork ... in a quid pro quo exchange for sexual favors"; suggested that Zwick did not need to work because she was married to a "wealthy attorney"; failed to afford Zwick sufficient time to complete her book and assigned Zwick heavier teaching assignments; and refused during Zwick's medical leave to allow Zwick to participate in a search for a new history professor. (Doc. 1 at 3–8)
In 2012, Zwick reported to USF's Office of Diversity, Inclusion, and Equal Opportunity (DIEO)7 that Ottanelli had engaged in offensive and discriminatory conduct. After these accusations, Ottanelli began contacting DIEO each time Zwick complained about discrimination, and Ottanelli began communicating with Zwick exclusively through e-mail or in the presence of other people. (Doc. 34 at 9–10)
Zwick's mid-tenure review, which considers an applicant's progress toward tenure, occurred in Spring 2009. (Doc. 46 at 4) Although Zwick received positive reviews in teaching and service, Ottanelli, the history department faculty committee, and Associate Dean John Cochran rated Zwick as "weak" in research. Zwick received one "strong" in research from the college of arts and science's review committee, which rated Zwick favorably because the committee expressed confidence that "Zwick's book will soon be accepted for publication." (Doc. 35-14 at 3) In contrast, Associate Dean Cochran noted that Zwick "needs to get her book in press" before she applies for tenure, the college of arts and science's tenure and promotion committee stated that Zwick would "meet the requirements for tenure" only if she "produces a monograph that is in press by the time she applies for tenure," and the department faculty committee identified Zwick's published record as "currently weak" and emphasized Zwick's need to "produce a monograph that is in press by the time she applies for tenure." (Doc. 35-14 at 2–8) From 2009 until 2013, Ottanelli and other executive committee members continually exhorted Zwick to publish a book if she aspired to tenure. (Docs. 42-4, 42-5, 42-6, and 42-8)
During the 2011–2013 academic years, USF's denial of tenure to two history department professors became a "divisive issue" in the history department. (Doc. 34 at 8) USF denied Gregory Milton tenure in 2012, and Ottanelli voted against Milton's tenure. During the same term, Julie Langford obtained tenure by a narrow margin, and Ottanelli voted in favor of Langford's tenure. And in 2013, Scott Ickes was denied tenure despite the history department's and Ottanelli's voting in favor of Ickes's tenure. (Doc. 34 at 8–9)
In January 2013, Zwick discussed Ottanelli's alleged discrimination with Lorna Gibson, the assistant director of human resources, who later filed an incident report. (Doc. 35-13 at 1) In response to the report, Rhonda Ferrell-Pierce, a consultant in DIEO, contacted Zwick and identified for her several agencies that could help her address the alleged discrimination. On February 6, 2013, Ferrell-Pierce informed Zwick that she had 120 days after a discriminatory act to submit a formal complaint to DIEO. (Doc. 35-13 at 2) And on February 18, 2013, Ferrell-Pierce wrote in an "initial contact report" that Zwick "said that she wanted to think about filing a complaint with DEO because she did not know what would happen to her if she did." (Doc. 35-13 at 1) Zwick filed nothing.
Also, in February 2013, Zwick and two other USF history professors met with Eric Eisenberg, the dean of arts and sciences. (Doc. 46 at 5) During the meeting, Zwick complained about the atmosphere that Ottanelli had created as department chair and, according to Zwick (but contrary to Eisenberg's recollection),8 Eisenberg acknowledged Zwick's inability to obtain tenure while Ottanelli remained the department chair and assured Zwick that Eisenberg would "take [Zwick's] tenure review outside the history department." (Doc. 46 at 6–7)
In August 2013, Elizabeth Bell became the associate dean of arts and sciences. Zwick states that, following further inquiry about Eisenberg's mention of review outside the history department, Eisenberg "just referred her to Associate Dean Elizabeth Bell." Zwick alleges that Bell failed to seriously consider Zwick's grievances against Ottanelli. (Doc. 46 at 6)
After Zwick returned from her fourth medical leave in March 2013, Bell met with Zwick to discuss Zwick's tenure timeline and further encouraged Zwick to publish a scholarly monograph. (Doc. 34 at 12) During Zwick's annual review for 2013, Zwick submitted no research-related data and the executive committee expressed doubt about Zwick's progress toward tenure. (Doc. 42-8 at 3) Ottanelli echoed the executive committee's doubt in his review of Zwick. (Doc. 42-8 at 3)
Zwick's tenure application was scheduled to begin in the spring of 2014. Zwick was required to submit by April 18, 2014, a list of external reviewers, and Bell sent Zwick several e-mails prompting Zwick to submit the list. (Doc. 34-3 at 18–23) Zwick responded to a March 31, 2014 e-mail, which requested external reviewers, and stated:
[T]his is simply ridiculous. I have done everything I can to communicate with every level of administrator here at USF about the enormous problems in my department and quite specifically with the Chair, Fraser Ottanelli.... I would never expose my reputation to further damage by putting anything about my future into Fraser Ottanelli's hands.
In a reply e-mail, Bell stated (1) that Zwick could submit external reviewers directly to Bell (thus allowing Zwick to circumvent the "standard practice" of USF), (2) that Zwick could request an extension of, or...
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