Employment Law Daily Jury to decide if university overrode tenure recommendation in retaliation for prof’s EEOC charge
Friday, November 3, 2017

Jury to decide if university overrode tenure recommendation in retaliation for prof’s EEOC charge

By Marjorie Johnson, J.D.

A jury will decide whether a university official’s decision to reject a judicial review board’s recommendation to grant a professor a promotion and tenure, made just eight weeks after she filed an EEOC charge alleging gender bias, constituted unlawful Title VII retaliation. Declining to grant summary judgment against her, a federal court in Illinois determined that an inference of retaliatory motive and pretext could be made based on the suspicious timing, along with evidence of the official’s inconsistent approach to recommendations on tenure, apparent knowledge of the EEOC charge, and violation of university policy (Hatcher v. Board of Trustees of Southern Illinois University, October 30, 2017, Rosenstengel, N.).

Recommendations turn negative. The year before she went up for tenure, the associate professor purportedly helped a female graduate student make a sexual harassment complaint about a faculty member. The next year, her tenure review process began positively, with external reviewers giving positive recommendations. Her department was divided, but voted 4-2 in favor of her promotion and tenure, which was seconded by the department chair. The university committee dividedly voted in favor of tenure but against promotion. The dean, followed by the provost, each recommended against both tenure and promotion.

EEOC charge follows internal grievance. After the professor received the provost’s written recommendation against tenure and promotion, she filed a grievance with the university’s judicial review board (JRB). About six months later, she also filed an EEOC charge. Fifteen days later, the JRB issued a unanimous report concluding that the provost violated university policies and procedures by failing to give a detailed explanation for his decision to deny her tenure and reverse the department’s recommendation in her favor.

Chancellor rejects review board’s push for tenure. Based on these “serious procedural errors,” the JRB recommended overturning the provost’s negative decision and promoting the professor with tenure. Nevertheless, about eight weeks after the professor’s EEOC filing, the chancellor recommended that the board of trustees deny her promotion and tenure. She brought this lawsuit alleging Title VII claims of gender bias and retaliation and First Amendment retaliation, but the district court dismissed all her claims. The Seventh Circuit mostly affirmed, but reversed and remanded her claim that she suffered retaliation for filing her EEOC charge.

No judicial estoppel. The court first rejected the assertion that the professor was judicially estopped from claiming that she was denied tenure after filing her EEOC charge since she had already been denied tenure. There were two separate denials of tenure—one that resulted in her internal grievance and the other that took place after she filed her EEOC charge. Based on the Seventh Circuit determination that she plausibly alleged retaliation based on the “fact that the chancellor declined to act on the JRB’s recommendation,” it was clear that the relevant denial of tenure was the chancellor’s decision after her EEOC charge.

Institutional deference. The court also rejected the contention that the university should be given “substantial deference” on all issues relating to tenure decisions claim, including the professor’s retaliation claim, since it was “fundamentally an attack on the academic decisions of academic decision-makers.” Though courts generally give deference to academic institutions to set the standards for tenure and other decisions about who is entitled to teach, the U.S. Supreme Court carved out an exception in cases involving discrimination. Here, giving substantial deference to the chancellor’s decision would effectively insulate both her and the university from the antidiscrimination statues.

Retaliatory motive. The professor also sufficiently established a causal connection between her EEOC charge and the chancellor’s rejection of the JRB recommendation. In addition to the eight-week temporal proximity, there was evidence that the chancellor’s decision to make a recommendation different from the JRB was inconsistent with her prior behavior of simply forwarding recommendations regarding tenure to the board of trustees. Moreover, under the applicable collective bargaining agreement (CBA), the chancellor was required to treat the JRB decision in the same manner as she would a decision by the provost.

Moreover, a jury could reject the chancellor’s assertion that she was unaware of the EEOC charges. The record showed that a university attorney informed the provost about the professor’s EEOC charge at the JRB hearing. Since the chancellor would have discussed the JRB report with that very same attorney, a jury could find it “incredible” that the attorney would have failed to mention the EEOC charge. Moreover, since the chancellor testified the affirmative action officer generally advised her about any EEOC charges at monthly meetings, a reasonable inference could be made that she had learned about the EEOC charge at the monthly meeting during the two months that passed between the EEOC charge and the chancellor’s decision to override the JRB and deny the professor tenure.

Pretext. The professor also cast sufficient doubt on the university’s assertion that she was denied tenure because her research and publications were insufficient to merit the privilege of tenure. Based on evidence refuting her assertion that she was unaware of the professor’s EEOC charge, a jury could find that her explanation for failing to follow the JRB’s recommendation was insincere and intended to mask the role the EEOC charge played in her denial of tenure. Moreover, the chancellor’s behavior regarding the JRB recommendation could be deemed “unusual” enough to infer pretext and she also appeared to have failed to follow university’s grievance procedures that would have required her to recuse herself from participating in the decision since she had previously consulted with the provost about it.

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