No smoking gun in academic discrimination case

This case acquaints us with two well-worn principles of employment discrimination cases. First, academic tenure cases are hard to win under the antidiscrimination laws. Second, evidence that looks like a smoking gun may fizzle out when motion practice rolls around.

The case is Baldwin v. State University of New York at Buffalo, a summary order decided on May 10. Baldwin was a lecturer in the health and wellness department. She was up for tenure. Under the university's standards, plaintiff had to show that she had published enough scholarly articles. The college was concerned that plaintiff had not in fact published enough. While this was all shaking out, plaintiff spoke with the head of her department, Roberts, about student complaints about allegedly inappropriate things that Roberts had said in class. Plaintiff also reported these student complaints elsewhere in the college hierarchy.

So we have two motives here for the tenure denial. Was it because plaintiff had not published enough? Or was it because plaintiff had exercised her rights under Title VI in reporting student complaints about Roberts' classroom comments? The Court of Appeals (Livingston, Lynch and Walker) upholds summary judgment. As a general matter, courts don't like to second-guess the academic judgments reached by the decisionmakers in making tenure decisions. The Court of Appeals says there is no pretext here because "Roberts's consistent perspective on Baldwin's publication record undermines the reasonableness of any inference that her complaints caused his negative recommendation." What this means for plaintiffs is that if management has harbored concerns about your job performance even before you engage in protected activity, the courts more likely than not are going to find that those concerns are not a pretext for discrimination or retaliation.

Plaintiff did present what would appear to be a smoking gun. The SUNY HR department sent plaintiff an email after she filed the discrimination complaint. The email says, "The College must continue ongoing review process for continuing appointment and promotion in order to meet contractual notification deadlines. However, if you file a discrimination complaint through our internal complaint process in the Office of Equity and Diversity, the outcome of the investigation into your complaint may impact on the ultimate decision regarding your appointment." The Court of Appeals, however, rejects the argument that this email represented a direct threat of retaliation if plaintiff pursued her complaint of discrimination. The Court of Appeals says:

The e-mail links the outcome—not the filing—of Baldwin’s complaint to the tenure decision. And, as the district court stated, the “full context makes plain” that this sentence was merely an explanation of how the timelines for a complaint and Baldwin’s tenure application would interact. Specifically, SUNY-Buffalo could not halt Baldwin’s tenure review because of contractual deadlines, but a finding of retaliation might affect SUNY-Buffalo’s ultimate decision on Baldwin’s application for tenure. Accordingly, the Earshen e-mail does not evidence retaliation and does not alter the conclusion, here, that the district court properly granted summary judgment to the Defendant-Appellee.