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March 28, 2002


The opinion of the court was delivered by: David G. Larimer, Chief United States District Court Judge.


Plaintiff, Mara McFadden, commenced this action on May 18, 1999, alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law, Exec. L. § 296. Plaintiff, who was employed as an Assistant Professor in the English Department at defendant State University of New York ("SUNY"), College at Brockport ("Brockport") up until her termination in September 1999, alleges that defendant discriminated against her on account of her sex, and retaliated against her for having opposed that discrimination. Defendant has moved for summary judgment.


Viewing the record in the light most favorable to plaintiff, the nonmoving party, the facts are as follows. Plaintiff, who holds a Ph.D. in English, began her employment at Brockport in August 1991. At the time of her hire, the Appointment, Promotion and Tenure ("APT") Committee at Brockport, which had interviewed and recommended hiring plaintiff, informed her of what she would need to accomplish in order to be granted tenure, for which she was expected to become eligible in about six years.

Plaintiff alleges that she was told that her contributions would be weighed in three areas: teaching, service, and scholarship. She claims that the APT Committee told her that these three areas would be weighed in the aggregate, so that any perceived deficiency in one could be offset by strength in the other two areas.

The requirements for tenure (sometimes referred to as "continuing appointment") were also set forth in a document containing "Guidelines for Continuing Appointment," which was distributed to all Brockport faculty members annually. See Affirmation of Richard Meade (Docket No. 18), Exs. C — I. Plaintiff testified at her deposition that she had received copies of these documents. Plaintiff's Depo. (Defendant's Motion Ex. C) at 94. The guidelines in effect from the 1991-92 academic year through the 1996-97 academic year, which were essentially unchanged throughout that period, stated that a recommendation for continuing appointment would be based primarily on an evaluation of the candidate's performance in each of several categories: "mastery of subject matter"; "effectiveness of teaching"; "scholarly ability"; "effectiveness of university service"; and "continuing growth."*fn1 "Scholarly ability" would be assessed "as demonstrated by such things as success in developing and carrying out significant research work in the subject matter field, contribution to the arts, publications and reputation among colleagues."

The guidelines also stated that a "positive recommendation for continuing appointment reflects the expectations that the person has the potential for attaining the highest rank in the department. . . ." In plaintiff's case, this would have been the rank of Associate Professor.

The guidelines in effect during the 1997-98 academic year, when plaintiff's tenure application was considered, were differently worded, but substantively similar to the previous guidelines.*fn2 Those guidelines stated that "[t]raditionally, [Brockport] has considered three primary categories as the basis for review in all personnel actions," namely "teaching effectiveness," "scholarship, research and creative work," and "college, community, and professional service." Meade Aff. Ex. I at 6. The guidelines stated that "[t]he other two criteria, Mastery of Subject Matter and Continued Growth, are reflected by sustained contributions and demonstrated excellence in the above-noted three categories." The guidelines also stated that "each faculty member is expected to provide quality contributions in all three areas. The quantity of the expected contribution may vary, depending on institutional need in the primary categories." Id.

Like the prior guidelines, the 1997-98 guidelines also stated that "[c]andidates for continuing appointment should demonstrate potential for promotion to the next academic rank," and that a recommendation of continuing appointment "reflects the expectations that the person has the potential for attaining the highest rank in the department." To be promoted to Associate Professor (the next-highest rank above plaintiff's rank of Assistant Professor), the guidelines stated that "the person must show significant advancement in the area of scholarship beyond the level of Assistant Professor. . . . The demonstration of scholarship must include a product/performance that is subject to external peer review and contributes to the body of knowledge in the field." Id. at 9.

Under ordinary circumstances, plaintiff would have been eligible for tenure review during the 1996-97 academic year. In a letter to Dean Robert McLean of Brockport's College of Letters and Sciences dated October 8, 1996, however, plaintiff requested that her tenure review be deferred for one year. Plaintiff stated that there were three reasons for this request: first, her consecutive years of service had been interrupted in 1996 because she taught a reduced course load that Spring for medical reasons. Second, there was about to be a change in the presidency of the college, so a one-year deferment would avoid having the review process begin under one president's administration and conclude under another's. Third, the faculty workload had been increasing for some time, but that increase was just beginning to be recognized in the tenure review process. Affirmation of Robert McLean (Docket Item 20) Ex. C.

McLean wrote a memorandum on October 25, 1996, to Barbara P. Sirvis, Vice President for Academic Affairs, stating that he supported plaintiff's request for an extension. He stated that he based his support

on the fact that Dr. McFadden essentially lost the spring 1996 semester and a good part of the summer because of her recent pregnancy. She is very close to meeting the scholarship expectations of the English department. She has three articles under review, any one of which would put her over the top. It is possible that what she has now is quite adequate, but she feels that a positive response on one of her pending articles would remove any question.

McLean Aff. Ex. D.

By letter dated March 7, 1997, Sirvis offered plaintiff a one-year renewal of plaintiff's academic rank for a term appointment from September 1, 1998 through August 31, 1999, thereby granting plaintiff's request for a deferment of her tenure review. Plaintiff accepted the offer by signing the letter on April 7, 1997. McLean Aff. Ex. E.

Plaintiff's tenure review began in the Fall of 1997. Her application was considered by the APT Committee, which was composed of faculty members John Maier, Stanley Rubin, Vincent Tollers, Alice Brand, and Earl Ingersoll.

The composition of the APT Committee is the source of some dispute in this case. The committee was to have five members, who were chosen annually. In a memorandum to "All Department Members" dated June 3, 1997, Paul Curran, who at that time was the Chair of the English Department, asked the department members to vote for five candidates for the APT Committee. The memo listed the five faculty members named above as Curran's recommendations, followed by a blank line labeled "Other," for write-in votes. Affirmation of Paul Curran (Docket Item 21) Ex. B.

In another memo dated July 21, 1997, Curran stated that "[s]ince [he] received only five responses for [his] request for votes concerning the standing committees assignments for the coming year, the assignments stand as described in the earlier memo." Curran Aff. Ex. Q.

At Newlyn's deposition, some documents were introduced relating to these events.*fn3 The first, described as an "anticipated activities sheet," Newlyn Depo. at 9, was a form filled out by Newlyn indicating what teaching and other activities at Brockport she expected to participate in during the 1997-98 academic year. Under "Department or College committees," Newlyn listed: "Graduate Committee; others not known yet, but may include APT Committee. I have volunteered to work on Assessment."*fn4

In a memo that Newlyn allegedly faxed to Curran dated June 11, 1997, Newlyn stated that in an earlier conversation with Curran, Newlyn "had indicated interest in being on the APT Committee for next year, and was therefore surprised not to see my name listed. However, since I can confirm that I would serve, I would like my name to be on the ballot."

In what appears to be a letter or memo to Curran from Newlyn dated March 18, 1998, Newlyn also stated, "Last year . . . I indicated to you my interest in being on the APT Committee for this current year of 1997-98 and therefore included the APT Committee among the other service work I listed as expected for this year, on the blue Anticipated Workload form that went with our Annual Reports to the dean."

Plaintiff contends that the real reason that Curran did not nominate Newlyn to serve on the APT Committee was that he knew that Newlyn supported plaintiff's upcoming candidacy for tenure, which Curran opposed. Newlyn testified that had she been on the committee, she would have voted in favor of plaintiff's candidacy. Newlyn Depo. at 11. She described plaintiff as a friend. Newlyn Depo. at 38.

Curran himself testified that he did not recall Newlyn volunteering for the APT Committee, and that

if Dr. Newlan [sic] had volunteered, I probably would have put her name on the ballot. I had some reservations about Dr. Newlan serving and she had expressed concerns about her health to me on a number of occasions and about the effect of stress on her.
This was a — this particular year, in addition to the tenure decision, was a very busy year for the department and I would have had concerns about it.

Plaintiff's counsel then asked him, "But you would have put her on the ballot?," to which Curran replied, "Oh, yeah." Curran Depo. (attachment to Docket Item 29) at 15-16. In his affirmation, Curran states,

Curran Aff. ¶ 57.*fn5

At a meeting on November 12, 1997, the APT Committee voted, 3-2, against supporting plaintiff's application for continuing appointment. Affirmation of John Maier (Docket Item 19) ¶ 14 and Ex. B. Maier and Rubin were the two members who voted in favor of plaintiff's application. Maier Aff. ¶ 14; Rubin Depo. (attachment to Docket Item 29) at 51.

Two days after this vote, on November 14, 1997, the APT Committee prepared and sent a memorandum to Dr. Paul Yu, Brockport's President, recommending that plaintiff not be granted continuing appointment. Maier Aff. Ex. C. Curran also received a copy of the adverse recommendation. The memorandum stated, inter alia, that the committee found that plaintiff's performance in the area of scholarship was "not adequate." In particular, the committee stated that plaintiff's publications were "few and the rate of publishing [was] declining." The committee noted that although plaintiff had contributed 274 entries in the 1992 Bloomsbury Guide to Women's Literature, "[s]ince then the candidate has published one scholarly article."

The APT Committee stated that it

recognized that bind that the untenured faculty members may find themselves in at Brockport. Dr. McFadden not only served on departmental committees, but chaired two of them, including the APT Committee itself. (Under the new college rules, this would not be allowed now.)*fn6 If Dr. McFadden felt that she was being encouraged to serve on committees of the department, she may well have wondered if such service would replace the emphasis on scholarship. A reading of the annual reports suggests that such was ...

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