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.
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
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
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.
The dispute here concerns the absence from the ballot of Evelyn S.
Newlyn, a member of the English Department Faculty. Newlyn testified at
her deposition that she had indicated to Curran that she was
in serving on the APT Committee during the 1997-98 academic year, and
that she was surprised when she did not see her name on the ballot
"because usually everybody who volunteers is on the committee they
volunteer for." Newlyn Depo. (attachment to Docket Item 29) at 10. She
testified that she asked Curran why she was left off the ballot, and he
replied that he thought that she did not want to serve on the committee
that year due to her health problems. Newlyn Depo. at 10-11.
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,
I proposed that Alice Brand should be a member of the
1997-1997 ENL [English Department] APT Committee which
considered Plaintiff's tenure application because [he]
felt that it was important that a female should
participate and the
only available choices were Alice
Brand and Evelyn Newlyn. Alice Brand had been on the
1994-1995 APT Committee which had recommended that
Plaintiff's appointment be renewed and I thought she
would be objective. On the other hand, I was aware
that Evelyn Newlyn had long standing health problems
and that there were a number of substantial issues
before the APT Committee that year, including
applications for tenure and promotion and searches.
Curran Aff. ¶ 57.