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Jami Montgomery v. Depaul University

September 7, 2012

JAMI MONTGOMERY, PLAINTIFF,
v.
DEPAUL UNIVERSITY, DEFENDANT.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Dr. Jami Montgomery, an African-American man, was a tenure-track assistant professor at DePaul University. DePaul rejected Montgomery's application for tenure, and it later refused to rehire him to an adjunct teaching position he had obtained and held for a brief period after being denied tenure. Montgomery brought this suit against DePaul, claiming that it had discriminated against him on the basis of race in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; retaliated against him in violation of Title VII and § 1981 for engaging in activity protected by those two statutes; and breached obligations to him created by DePaul's Faculty Handbook, in violation of state contract law. DePaul has moved for summary judgment. The motion is granted as to all of Montgomery's claims, except for the claim that DePaul refused to rehire Montgomery as an adjunct in retaliation for his filing this suit, which initially complained only of the denial of tenure.

Background

A. DePaul's Hiring of Montgomery

DePaul hired Montgomery as a visiting professor in its School of Computer Science, Telecommunications, and Information Systems ("the School") in 2002; a few months later, DePaul made him a tenure-track assistant professor. Doc. 74 at ¶ 3. (The School later was renamed the College of Computing and Digital Media, id. at ¶ 5, but the change is irrelevant to this case and thus will be ignored.) Montgomery's probationary period, or "tenure clock," was six years. Id. at ¶ 6. At the end of that period, he would be eligible to apply for tenure, and if he failed to win tenure, he would not be allowed to continue as an assistant professor. Id. at ¶ 21; Doc. 75-2 at 25, 34.

Upon joining DePaul, Montgomery signed a Contract of Faculty Employment, which provided that "[t]he Faculty Member agrees to devote his or her full time and best efforts to the discharge of designated duties, to engage in employment outside the University only under conditions stipulated in the University's Faculty Handbook, as from time to time amended, and to fulfill the other obligations of the DePaul faculty as described in this same Handbook." Doc. 74 at ¶ 9; Doc. 75-3 at 1. The Faculty Handbook imposes several restrictions on outside employment: it requires that paid outside activities not exceed one day per week over the course of a year, further requires that employees submit an annual report of outside employment, and provides that a "material violation" of the outside employment policy could lead to termination. Doc. 74 at ¶¶ 8, 10-11; Doc. 75-2 at 63-64. Yet throughout his probationary period, Montgomery held a full-time job with an annual salary of $100,000 at Lucent Technologies, despite having stated on the curriculum vitae he gave to DePaul that he had worked for Lucent only through 2002. Doc. 74 at ¶ 7, 15. Dr. Helmut Epp, who was dean of the School when Montgomery was hired and had become DePaul's provost by the time Montgomery applied for tenure, testified at his deposition that he "would have immediately terminated [Montgomery] had he known of his employment with Lucent." Id. at ¶ 13. The School's current dean, Dr. David Miller, testified similarly. Id. at ¶ 14. But DePaul apparently was unaware of Montgomery's outside employment prior to this litigation.

B. Montgomery's Diversity Advocacy and Assistance to Terminated Colleagues

During his time at DePaul, Montgomery urged the university to increase its efforts to achieve a racially diverse faculty. He helped to establish and then chaired a Diversity Committee at the School. Id. at ¶ 58. While his tenure application was under review, Montgomery told the University Board on Faculty Promotion and Tenure ("UBPT") that he thought his role with the Diversity Committee was one of his greatest services to DePaul. Id. at ¶ 64. Montgomery also discussed with Deans Epp and Miller the need for greater diversity in the School. Id. at ¶ 66. At a public meeting regarding Epp's application to be promoted to provost, Montgomery asked Epp by what mechanisms university officials should be held "accountable" for improving diversity; Epp replied that increasing diversity was an important goal, but that Montgomery's language about holding individuals accountable was "too strong"; when Montgomery pressed him further on the lack of tenured African-Americans at the School, Epp turned red, ignored Montgomery, and began taking questions from other faculty members. Id. at ¶ 56; Doc. 81 at ¶ 43; Doc. 78-5 at 21-24.

Montgomery recognizes that DePaul has instituted several university-wide diversity initiatives and has been recognized for its diversity efforts by Diversity MBA Magazine. Doc. 74 at ¶¶ 61-62. And he does not allege that he was subjected to racially discriminatory language by anyone at DePaul, with the sole exception of joking racial references from a colleague named Steele; Montgomery admits that Steele is his friend and that he did not feel discriminated against by Steele's comments. Id. at ¶ 51. Montgomery points out that Epp showed a racially offensive clip from the film Birth of a Nation during a meeting, but he admits that the context was a lecture by Epp on the history of digitization and that the clip was actually a ten-second portion of a two-minute excerpt that Epp screened from Martin Scorsese's History of the Cinema. Id. at ¶¶ 49-50. Although he was aware of the procedure for doing so, Montgomery never filed an internal complaint for discrimination or retaliation during his time at DePaul. Id. at ¶ 68.

Montgomery also offered various forms of support to several DePaul employees who were terminated by the university. He helped an African-American colleague who had been fired by DePaul to seek adjunct employment there, though he never suggested to anyone affiliated with DePaul that the colleague had suffered discrimination. Id. at ¶ 54. Montgomery advised a former adjunct to file a complaint alleging sex discrimination, though he never told this to anyone affiliated with the university, and he did not himself make a complaint or participate in an investigation of his colleague's termination. Id. at ¶ 67.

C. Montgomery's Tenure Application

At the end of his probationary period, during the 2007-2008 academic year, Montgomery applied for tenure. Id. at ¶ 6. According to the Faculty Handbook, the criteria for tenure decisions are the quality of the candidate's (1) teaching, (2) scholarship and research, and (3) service to the university. Id. at ¶ 16; Doc. 75-2 at 26-33. The Handbook provides that a candidate must pass through four layers of review to be awarded tenure: (1) the candidate's department; (2) the dean of his school or college; (3) the UBPT, which has seven members; and (4) the university president. Doc. 74 at ¶ 17; Doc. 75-2 at 34-38. In a passage quoted in the Discussion section of this opinion, the Handbook provides that the president should overturn the UBPT's decision only under compelling circumstances, but that otherwise one level of review should make its own independent application of the tenure criteria if it finds the previous level's decision to be deficient in significant respects. Doc. 74 at ¶¶ 19-20; Doc. 75-2 at 37.

The faculty of Montgomery's department voted 26 to 7 in favor of awarding him tenure, and Dean Miller endorsed that recommendation. Doc. 74 at ¶ 22. But the UBPT voted 5 to 1 against Montgomery (the seventh member was absent), and the president accepted the UBPT's recommendation and denied Montgomery tenure. Id. at ¶¶ 35, 37; Doc. 75-5 at 5. The UBPT expressed concern about the seven "no" votes Montgomery had received from his departmental colleagues, and noted that even among the 26 who voted for him, only nine thought his scholarship was strong. Doc. 75-5 at 5. Although some of Montgomery's peers had also criticized his teaching effectiveness, the UBPT concluded that his teaching was "good" and therefore met the Handbook's minimum requirements for teaching. Ibid. The UBPT viewed Montgomery's service to the university as "strong," but explained that a strong service record cannot make up for teaching and research that "appear to be weak or, at the best, minimally meeting requirements." Ibid.; Doc. 74 at ¶ 36. The president repeated the UBPT's rationale in adopting its recommendation and denying tenure. Doc. 74 at ¶ 37; Doc. 75-6. Although Montgomery initially alleged that Epp, who by then had become provost, discriminated against him on the basis of race by recommending to the president that he be denied tenure, he now admits that Epp merely played the ministerial role of transmitting the UBPT's report to the president; the evidence shows that Epp did not participate in the UBPT's deliberations on Montgomery's application or the drafting of its report. Doc. 74 at ¶¶ 43-45.

D. Montgomery's Employment as an Adjunct

After being denied tenure, Montgomery was hired by Dr. Kevin Stevens of DePaul's School of Accountancy and Management Information Systems as an adjunct faculty member to teach a winter 2010 accounting course. Id. at ¶ 71; Doc. 81 at ¶ 44. Stevens hired Montgomery after learning, with only ten days before the position had to be filled, that the faculty member set to teach the course would be unable to do so for medical reasons. Doc. 74 at ¶ 72. Montgomery was paid $7500 along with a tuition reimbursement for about $3000. Id. at ¶ 71. At the time Stevens hired Montgomery, Stevens was unaware that Montgomery had filed with the Equal Employment Opportunity Commission ("EEOC") an administrative charge against DePaul alleging race discrimination. Doc. 81 at ¶ 49. In January 2010, when Montgomery began teaching his course, he filed this suit, which at its inception concerned only the tenure denial. When Stevens learned of the suit shortly thereafter, Doc. 81 at ¶ 50; Doc. 74 at ¶ 75; Doc. 78-1 at 1, he emailed Epp: "I just heard about Jami's suit-this is news (and not good news) to me. . Sorry about this. We will of course not hire him back in Spring." Doc. 78-1 at 1.

Stevens carried through: he did not rehire Montgomery, who had no further employment at DePaul after the winter 2010 term. Doc. 78-5 at 32-33. Stevens told Montgomery that Epp had told Stevens that it was a bad idea for Stevens to rehire Montgomery due to Montgomery's pending suit against DePaul. Doc. 81 at ¶ 50; Doc. 78-5 at 34. At his deposition, Stevens offered this explanation for his decision not to consider Montgomery for future openings:

After I heard that the lawsuit had been filed, I didn't want to have a faculty member in there who felt so strongly about-so strongly negatively about the university. I didn't think it was appropriate to have a faculty member in the classroom who was-felt wronged by the university. I also felt it put the faculty in a-it was choosing sides on my part, which I was not willing to do. We are a very collegial school and it would be very difficult to have someone who's suing, who was that unhappy to be in the school.

Doc. 78-9 at 24.

Discussion

Montgomery's suit brings four claims: (1) DePaul discriminated against him on the basis of race in denying him tenure, in violation of Title VII and § 1981; (2) DePaul denied him tenure in retaliation for his advocating racial diversity and assisting fired colleagues, also in violation of Title VII and § 1981; (3) DePaul refused to rehire him for further adjunct employment in retaliation for filing this lawsuit, again in violation of Title VII and § 1981; and (4) DePaul did not adhere to certain provisions of the Faculty Handbook in considering his tenure ...


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