Opinion
Civil Action No. 3:95-CV-2766-P
February 8, 2000
MEMORANDUM OPINION AND ORDER
The Court now considers Defendants' Motion for Summary Judgment filed on December 1, 1999, and Plaintiff's Response filed on January 5, 2000. Upon reviewing the motion, the briefing, and the relevant case law, the Court hereby GRANTS in part and DENIES in part the Defendants' Motion for Summary Judgment.
FACTS
The University of Texas Southwestern Medical Center at Dallas ("Southwestern" or "Defendant") is a component of the University of Texas, which contains a medical school, a graduate school of biomedical sciences, and a health sciences school. Richard Anderson, M.D. ("Anderson") serves as Chair of the Department of Cell Biology, and Kern Wildenthal, M.D., Ph.D. ("Wildenthal") is President of Southwestern. On October 1, 1985, Kathryn Muntz, Ph.D. ("Plaintiff" or "Dr. Muntz") was made an associate professor on the tenure accruing track in the Department of Cell Biology.
William Neaves Affidavit ¶ 62, Del's App. at l. During the relevant time period, Dr. Neaves served as Dean of the Medical School at Southwestern.
Southwestern maintains a tenure and promotion process that the parties have outlined in detail in their briefs and their appendices. In short, tenure denotes a status of continuing appointment as a member of the faculty at Southwestern. Although not all faculty may become eligible for tenure, any faculty member on the tenure-track must be reviewed and granted tenure before the expiration of their eighth year of probationary faculty service or else they will be dismissed. On September II of each academic year, the Dean of the medical school calls for nominations for promotions and/or tenure from the Department Chairs. The Department Chairs then submit a nomination packet for each faculty member in their department that they believe should be considered for promotion and tenure.
See Regents Rules Regulations, Def's App. 2744.
The Promotions and Tenure Committee reviews the packets of the nominated candidates for tenure. This Committee consists of 15-20 tenured faculty members who the Southwestern President appoints for year long terms. The Committee assigns two of its members to serve as the primary reviewers of each packet and to investigate the nominee's qualifications by conducting interviews with selected individuals regarding the nominee's qualifications and national reputation. The reviewers then present the results of their investigation to the Committee who then makes a recommendation to the Dean on the nominee's promotion.
Southwestern uses an appeals process for those nominee's who receive an adverse decision. Initially, the Chair who made the nomination may appeal an adverse decision in writing to the Dean. The Committee considers the appeal and may allow the Chair to appear personally before them. If the decision remains adverse, then the nominee may appeal to the Dean, who may appoint a special ad hoc committee to consider the appeal. The final appeal is to the President; however, if the nominee contends that the adverse decision has been reached for unlawful reasons, then the decision may be reviewed by a hearing tribunal appointed by the President.
In 1992, Dr. Muntz's seventh year on the tenure track, Anderson nominated her for tenure. After the investigation by her primary reviewers, the Committee voted 9 to 4 in denying the promotion of Dr. Muntz to the rank of Associate Professor with tenure. Dr. Muntz appealed the decision, but the Committee again voted 9 to 5 in favor of denying her promotion. She then appealed the Committee's decision to Neaves, the Dean of the Medical School, who appointed an ad hoc committee to review the appeal. The ad hoc committee and the Dean denied Dr. Muntz's appeal.
Richard Anderson Aff. ¶ 15, Def's App. at 661. During that time, Dr. Anderson served as acting chair of the Department of Cell Biology and Anatomy. He is now chair of the department, though it is now known only as Cell Biology. Anderson Aff. ¶ 2, Del's App. 658.
Buxton Combes Aff. ¶ 116, Del's App. at 481. Dining the relevant time period, Dr. Combes served as chair of the Promotions and Tenure Committee.
Combes Aff. ¶ 620, Del's App. at 482.
Neaves Aff. ¶¶ 30-36, Del's App. at 9-11,
In 1993, Dr. Muntz' s eight year on the tenure track, Anderson again nominated Dr. Muntz for promotion and tenure. Once again, he prepared the nomination letter and the packet materials. After another investigation into her qualifications, the Committee voted 10 to 2 to again deny her promotion. Rather than appealing to Neaves as she had the previous year, Dr. Muntz requested a review of the decision by Kern Wildenthal, the President of Southwestern. Under the Rules and Regulations of the Board of Regents, if a nominee makes allegations that an adverse tenure or promotion decision was made for unlawful reasons, then the President must convene a tribunal to investigation the allegations. Wildenthal instituted the procedures after Dr. Muntz made her appeal. However, the hearing was rescheduled at Dr. Muntz's request and was never rescheduled.
Anderson Aff. ¶ 29, Del's App. at 664.
Combos Aff. ¶ 24, Del's App. at 483.
Kern Wildenthal Aff. ¶ 11, Del's App. at 644.
Wildenthal Aff. ¶¶ 13-14, Def's App. at 644,
On April 6, 1994, Anderson offered Muntz an appointment as a lecturer in the Cell Biology and Neuroscience department on the research track position. Southwestern contends that the offer included a formal offer letter that required an acceptance or rejection by May 1, 1994. They claim that the offer expired when she failed to accept the offer or request an extension of the deadline by that date. Dr. Muntz maintains that the offer never included a response date and that Southwestern and Anderson arbitrarily withdrew the offer in retaliation for Dr. Muntz's contest of her denial of tenure. Dr. Muntz did not receive a reappointment at Southwestern for the 94-95 academic year, and she left Southwestern on August 31, 1994.
Anderson Aff. ¶ 33, Del's App. at 665.
Id.
Id. ¶¶ 34-3 6, Del's App. at 665-66.
Pl's Resp. at 3.
Combos Aff. ¶ 25, Def's App. at 483.
Plaintiff now sues the Defendants claiming that Southwestern denied her a tenure position because of her sex in violation of Title VII. She contends that Southwestern maintains a policy and practice of routing women to non-tenure track positions. After refusing Southwestern's attempts to divert her to a research track position, she alleges that she was then denied tenure even though similarly situated men were granted tenure. She also brings claims against Anderson for intentional infliction of emotional distress. This claim stems from her allegations that although Anderson purported to support Dr. Muntz, he intentionally subverted her tenure candidacy and then arbitrarily withdrew the offer of a research position. Plaintiff contends that these intentional acts resulted ultimately in Dr. Muntz's death.
Plaintiff also brought claims of slander, defamation, and negligent retention counts as to all Defendants as well as an intentional infliction of emotional distress count against Dr. Wildenthal. In Plaintiffs Response to Summary Judgment Motion, she withdraws these specific claims. Therefore, the Court GRANTS the Defendants' Motion for Summary Judgment with respect to these claims.
The Defendant moves for summary judgment on all of Plaintiff's claims. Specifically, Southwestern argues that it denied Dr. Muntz tenure because due to the limited importance and the low productivity of her research. Anderson moves for summary judgment of the intentional infliction of emotional distress claims, arguing that Plaintiffs allegations do not rise to the level of outrageous behavior that Texas considers actionable.
DISCUSSION
A. Summary Judgment Standard
Summary Judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold. Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue.Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc.,5 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n. 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to is case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex. 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the nonmoving party directs. Id.
B. Intentional Infliction of Emotional Distress
The elements of intentional infliction of emotional distress are: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress that the plaintiff suffered was severe. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex, 1993). In order to recover for this tort, the plaintiff must demonstrate more than malicious, tortious, or even criminal intent on the part of the defendant. Rather, the plaintiff must demonstrate that the defendant's conduct is so outrageous and so extreme in degree "as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community."Twyman, 855 S.W.2d at 621 (quoting Restatement (Second) of Torts § 46 cmt. d). The Texas Supreme Court held as a matter of law that "the mere fact of termination of employment, even if the termination is wrongful, is not legally sufficient evidence that the employer's conduct was extreme and outrageous under the rigorous standard that [it] established in Twyman." F.J. Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999) (quotingSouthwestern Bell Mobile Systems. Inc v. Franco, 971 S.W.2d 52, 54 (Tex. 1998)).
Although some facts are in dispute, the evidence must be considered in the light most favorable to Plaintiff Dr. Muntz's claims of intentional infliction of emotional distress rely upon the following facts and allegations: Anderson's subversion of Dr. Muntz's tenure candidacy while purporting to support her and his arbitrary withdrawal the offer from Dr. Muntz of a research track position in retaliation for her challenging the tenure decision. Even if the Court takes as true Plaintiff's allegations that Anderson's intentional behavior directly caused her severe emotional harm, the conduct about which Dr. Muntz complains does not rise to the level of extreme and outrageous conduct for which she may recover under Texas law. See E.J. Brewerton, 997 S.W.2d at 216 (holding that plaintiff did not complain of actionable conduct where the individual defendants made negative comments that were reflected in plaintiff's tenure file, repeatedly recommended that plaintiff should not be allowed to continue on tenure track, restricted his speech regarding the contents of his tenure folder, and allegedly assigned him an excessive case load so that he would not be able to meet his publication requirement); see also Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993) (holding that racial slurs and jokes do not support a claim for intentional infliction of emotional distress); Thomas v. Clayton Williams Energy. Inc., 2 S.W.3d 734, 741 (Tex.App. .— Houston 1999, n.w.h.) (holding that insults, indignities, threats, annoyances, racial slurs and harassment do not support a claim for intentional infliction of emotional distress where plaintiff claimed that the conduct caused him to suffer clinical depression).
Pl's Resp. at 14.
Conduct which may be illegal in an employment context does not necessarily constitute extreme or outrageous conduct. Horton v. Montgomery Ward Co, 827 S.W.2d 361, 367 (Tex.App. — San Antonio 1992, writ denied). The Texas Supreme Court expressed concern that if the threshold for extreme and outrageous behavior were not sufficiently rigorous, then every employer might be subjected to a potential jury trial with virtually every discharge. See F.J. Brewerton, 997 S.W.2d at 216. The Fifth Circuit applies this standard very rigorously as well, holding that cruelty and unfairness do not necessarily equate with the type of utterly indecent, intolerable and atrocious behavior necessary to prevail on a claim of intentional infliction of emotional distress. See McComathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 560 (5th Cir. 1997) (finding that the defendant's conduct was not extreme and outrageous where he told plaintiff that he would no longer tolerate her health problems, he pressured her to return to work, he threatened to tire her, he excluded her from business meetings and transferred assignments away from her). Even assuming that Anderson did have some retaliatory motive in withdrawing the job offer and that he did secretly campaign against her promotion to a tenured position, Plaintiff has not pointed this Court to any behavior that goes beyond all bounds of decency. Accordingly, the Court hereby GRANTS the Defendants' Motion for Summary Judgment as to Plaintiff's claims of intentional infliction of emotional distress.
C. Title VII
The Supreme Court laid out the basic framework for analyzing an employment discrimination claim in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the McDonnell Douglas burden shifting test, the plaintiff first bears the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); McDonnell Douglas, 411 U.S. at 802. The prima facie case of discrimination requires the plaintiff to prove (1) she was a member of a protected class; (2) she was qualified for the position she was denied; (3) she suffered an adverse employment action; and (4) she was replaced by or treated differently than someone outside the protected class. McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the defendant "to articulate some legitimate nondiscriminatory reason for the employee's rejection." Id. If the defendant meets this burden, then the plaintiff must prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons but were instead pretext for discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The ultimate burden of persuasion as to the defendant's intentional discrimination remains at all times with the plaintiff Id.
The Defendant moves for summary judgment of Dr. Muntz's Title VII claim for sex discrimination based upon its proffered legitimate nondiscriminatory reason for denying her promotion to associate professor with tenure. Southwestern states that the Committee's decision to deny Dr. Muntz's tenure largely reflected the Committee's judgment that her research record was not outstanding and had not earned her a national reputation
Neaves Aff. ¶ 22, Del's App. at 7; Helen Yin Affidavit 6 12, Del's App. at 543. Dr. Yin served on the Promotions and Tenure Committee as a primary reviewer for both of Dr. Muntz's nominations for tenure.
The Plaintiff has produced sufficient evidence to defeat summary judgment. William Gonyea, a tenured professor at Southwestern, testified to the sexist comments made by several members of the faculty. He also wrote a letter in which he complained that Dr. Muntz's nomination was denied because of her sex and compared her more favorably than two men who had received tenure. Moreover, Dr. Gonyea testified to the inaccuracies of Southwestern's statements that Dr. Muntz was a mediocre researcher and only a good teacher. Karen Burton, a former faculty member of Southwestern, also testified that she witnessed and experienced discriminatory behavior by the Defendant Due to the nature of this evidence, the Court hereby DENIES the Defendants' Motion for Summary Judgment as to the Plaintiff's claims of sex discrimination.
Gonyea Depo. at 90-96, Pl's App. 90-96.
Del's App. 326-28.
Gonyea Depo. at 47, Pl's App. at 41.
Burton Aff. ¶¶ 6-8, Pl's App. at 126.
CONCLUSION
For the reasons stated herein, the Court GRANTS the Defendants' Motion for Summary Judgment with respect to Plaintiff's claims for intentional infliction of emotion distress, negligent hiring, negligent retention, defamation, slander, and self publication. The Court DENIES summary judgment with respect to Plaintiff's claims under Title VII.
So ORDERED, this day of February 2000.