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
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.
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.
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
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
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,
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 ...