Opinion
No. 3:00-CV-661
January 15, 2002
MEMORANDUM AND ORDER
Plaintiff has filed a motion for discovery [Doc. 11]. Plaintiff requests that he be allowed to engage in discovery at least on the issue of qualified immunity before there are any further proceedings or rulings from this court upon the applicability of qualified immunity as a defense to this complaint, and before the court entertains any motions for summary judgment or other dispositive motions which may be filed seeking dismissal of the complaint upon grounds of qualified immunity. Defendant has responded in opposition [Doc. 16].
Defendant has moved the court for a protective order to provide him protection from the discovery sought by plaintiff which defendant deems inconsistent with the doctrine of qualified immunity [Doc. 25]. Plaintiff has responded and defendant has replied to plaintiff's response [Doc. 30].
For the reasons stated below, plaintiff's motion for discovery [Doc. 11] is GRANTED AS MODIFIED and defendant's motion for a protective order [Doc. 25] is DENIED.
BACKGROUND
Plaintiff, Ronald Leadbetter, is an Associate General Counsel in the Office of the General Counsel for the University of Tennessee (UT or University). Defendant, J. Wade Gilley, was President of UT from August 1, 1999 through June 1, 2001. In early September 1999, General Counsel Beauchamp Brogan announced his retirement effective December 31, 1999. A formal search was conducted by Trustee Roger Dickson following which, in late November 1999, Dickson recommended Catherine S. Mizell as the most qualified candidate. According to defendant, based upon Dickson's recommendation, a review of the qualifications of Mizell and the plaintiff, and the recommendations of Mizell by General Counsel Brogan, former President Joseph E. Johnson, and the three highest-ranking administrators at UT Knoxville (among others), in December 1999, defendant recommended Mizell to the Board of Trustees for election to the Vice President, General Counsel and Secretary position. On December 20, 1999, the Board, acting through its Executive Committee, elected Mizell to the position.
In December 1999, defendant announced a streamlining and restructuring of the University's administration, which resulted in five individuals reporting directly to the defendant with additional responsibilities and new job titles: one white female, three white males, and one black male, Theotis Robinson, who was re-titled as the Equity and Diversity Administrator. In August 2000, defendant assigned additional responsibilities and new job titles of staff vice president to five individuals: two white females, two white males, and one black male, Robinson, who was re-titled Vice President of Equity and Diversity. According to defendant, none of these changes in responsibility or job titles were vacancies. It appears the Equity and Diversity Administrator job paid $35,000 per year less, and the Vice President of Equity and Diversity job paid $11,400 less than plaintiff was earning at that time.
On November 30, 2000, plaintiff filed this reverse gender and race discrimination action against Gilley under 42 U.S.C. § 1981 and 1983, the Fourteenth Amendment of the United States Constitution and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq. Plaintiff alleges that Gilley "intentionally and willfully" discriminated against him on the basis that he is "male and Caucasian" by : (1) denying plaintiff promotions to the position of Vice President and General Counsel and "choosing . . . a woman less qualified" than he "on the basis of her gender"; (2) denying him consideration for the position having "chief responsibility for managing the diversity resources" of the University and choosing an African-American who was "less qualified" than he "on the basis of his race" (Equity and Diversity Administrator); and (3) denying him "consideration for and selection to the position of Vice President for Equity and Diversity Affairs" and "instead choosing an African-American who was less qualified" than he "on the basis of his race" (Vice President for Equity and Diversity).
Plaintiff claims that from the time Gilley was employed, he repeatedly articulated his intent to hire and promote women and minorities. Prior to any advertisement of or search for the position of Vice President and General Counsel, defendant announced to immediate staff his decision to promote Mizell to the position held by Brogan. Only after Gilley received legal advice did he suspend implementation of his decision and initiate a job search for the position.
According to plaintiff, at defendant's request, a job description was prepared which was designed to favor Mizell and limit or exclude any serious competition; defendant selected Dickson, a white male University trustee, known to be friendly to Mizell, as the one member "search committee" charged with screening candidates and recommending to defendant suitable candidates for the position of Vice President and General Counsel. Plaintiff asserts the appointment of a search committee composed of a single member is unprecedented at the University for a search for a high level position. Plaintiff further claims the appointment of a white male as the sole member of that search committee falls outside the University's pattern and practice of appointing minorities and women to search committees.
Defendant interviewed Mizell twice for the position of Vice President and General Counsel, but interviewed plaintiff only once. On that single occasion, plaintiff states it was clear to him from the outset of the interview that defendant had no interest whatsoever in assessing plaintiff's qualifications for the position. Defendant's single interview with plaintiff on December 6, 1999, lasted approximately 15 minutes and involved little more than "chit-chat" unrelated to plaintiff's credentials or interest in the position. There was no discussion whatsoever of plaintiff's credentials or the resume submitted in conjunction with plaintiff's application for the position. On December 14, 1999, Gilley advised plaintiff of his decision to appoint Mizell to the position. During that meeting, defendant stated that he had spoken to the administrative staff and the staff had advised him that either Mizell or Leadbetter could do the job, but "Hey, Catherine's the deputy."
Plaintiff claims defendant's articulated reason for promoting Mizell based on her being the "deputy general counsel," and Mizell's promotion from that position to General Counsel being within the "natural chain of progression," is at odds with defendant's practice with respect to other positions at the University, and defendant utilizes the "natural chain of progression" rationale only as an excuse to defend an otherwise indefensible employment action. For example, according to plaintiff, defendant selected candidates from outside the University for the positions of Dean of College of Veterinary Medicine and as Dean of UT Libraries.
Plaintiff states that a minimal investigation of Mizell's credentials would have revealed that she has minimal trial experience. Plaintiff further asserts that while Mizell claimed to be solely responsible for the development of the fifty-year lease agreement transferring the UT Medical Center from the University to a private nonprofit corporation, defendant was aware that in preparing the agreement Mizell had failed to adequately specify lease payments for thirty of the fifty years of the lease.
As to Robinson, plaintiff states defendant selected Robinson over a number of qualified individuals already in the "natural chain of progression" including white employees, Sarah Phillips and Jennifer Richter. Not only was the "natural chain of progression" ignored, Robinson was not even in the "natural chain of progression," since he held no job responsibilities placing him in the "natural chain of progression" in the UT affirmative action office (Office of Equity and Diversity) until placed in the Equity and Diversity Administrator position.
Plaintiff claims that when defendant assigned Robinson oversight responsibilities for the Equity and Diversity program, he did so primarily, if not entirely, for the purpose of demonstrating his commitment to the employment and advancement of African Americans. That is, defendant placed Robinson in charge of the Equity and Diversity program based on his race. Plaintiff states that defendant did not, prior to Robinson's appointment, advertise the position of Equity and Diversity Administrator and did not consider any other candidates for the position because it was defendant's intent that Robinson have the position based on his race. Robinson was also promoted from Equity and Diversity Administrator to Vice President of Equity and Diversity without that position being advertised and without any other candidate being considered.
Plaintiff asserts that it has long been the practice and policy of the University to require a Bachelor's degree of senior administrative staff, including all Vice Presidents. In addition, officials at major public universities having responsibilities for an institution's equity and diversity (affirmative action) program are, typically, required to have, at a minimum, a Master's degree and related job experience. According to plaintiff, at the time Robinson was assigned oversight responsibilities for the Knoxville campus' Equity and Diversity program, Robinson lacked a college degree, and he had never been employed in a position at the University or elsewhere having responsibilities for the administration of an affirmative action program. Moreover, Robinson lacked any programmatic supervisory experience. Plaintiff opines had Robinson been white, defendant would not have assigned him oversight responsibilities. Plaintiff further asserts that defendant would not have promoted any white male lacking a college degree to the position of Vice President for Equity and Diversity.
Plaintiff claims he was unaware of Robinson's appointment to the position of Equity and Diversity Administrator until after the appointment was announced. While he learned that Robinson would be promoted to Vice President before the promotion was effectuated, plaintiff did not apply for the position because he was not invited to do so. Rather, it was plaintiff's understanding that Robinson would be recommended for appointment to Vice President without the position being advertised or candidates solicited, all in violation of the University's employment policies and procedures, the University's affirmative action program and the stipulation of settlement set forth in Geier v. Alexander, 593 F. Supp. 1263 (M.D.Tenn. 1984)
The University had been involved in long standing desegregation litigation which resulted in a judicial finding of de jure racial segregation of public higher education in Tennessee, including at the University. After a challenge was raised to the dual system of higher education in Tennessee, the State of Tennessee, including the University, was ordered by the District Court for the Middle District of Tennessee to submit a "plan designed to effect such desegregation of the higher educational institutions of Tennessee." Sanders v. Ellington, 288 F. Supp. 937, 942 (M.D.Tenn. 1968). The University ultimately entered into a stipulation of settlement which was approved by the district court. Geier v. Alexander, 593 F. Supp. 1263 (M.D.Tenn. 1984), and subsequently by the Sixth Circuit, Geier v. Alexander, 801 F.2d 799 (6th Cir. 1988).
Plaintiff states that any under-representation of African Americans in the University-Wide Administration (UWA) administrator classification in 1999 or 2000, Gilley's tenure as President, occurred after underutilization associated with the vestiges of past discrimination was eliminated. Thus, he argues that any under-representation of African Americans in 1999 or 2000 resulted from factors other than unlawful racially discriminatory employment practices by the University. Plaintiff states defendant's use of race in addressing under-representation resulting from factors other than past discrimination constitutes unconstitutional race discrimination.
Defendant has answered, denying the material allegations of the complaint and pleading, among others, the affirmative defense of qualified immunity. Gilley contends he was acting within the scope of his discretionary authority as President of the University when he made the decisions of which plaintiff complains.
Defendant asserts that he recommended Mizell because, in his judgment and the judgment of Dickson, the attorney and trustee (male) who conducted the search, she was the most qualified candidate for the position. In that regard, defendant relied upon the recommendation of Mizell by the retiring General Counsel Brogan, who had supervised both Mizell and plaintiff for 20 years or more. Defendant also relied on the recommendations of Mizell by senior current and former University administrators. Mizell had been the Deputy General Counsel, second in rank to the General Counsel, for six years. In that position, she was the chief assistant to the General Counsel and the attorney on whom he relied to review the work of other attorneys and to handle complex issues and special assignments for the President and the Board of Trustees. Mizell had previously served as the General Counsel and Secretary to the Board of Regents for the State University and Community College System of Tennessee, where she was chief legal officer for the ninth largest higher education system in the nation. Defendant asserts the Equity and Diversity Administrator and Vice President of Equity and Diversity positions were not vacancies for which Leadbetter or anyone else was considered. Those "positions" resulted from a streamlining and restructuring of the University in 1999 and 2000 in which (1) several major offices were eliminated, and (2) there was a consolidation of responsibilities into the remaining employees in those offices. As a part of the restructuring in December 1999, defendant consolidated several diversity, equity and affirmative action responsibilities into Theotis Robinson, an African-American male who had been the University's liaison with the Legislative Black Caucus and with the local African-American community. Robinson's title was changed to Equity and Diversity Administrator, a position paying $35,000 less than the plaintiff was earning at the time. Robinson was assigned oversight responsibilities for the diversity and affirmative action programs for the University's Knoxville campus, and he was reassigned to the president's immediate staff. In August 2000, as a further part of the restructuring, Robinson was given additional responsibilities for oversight of the affirmative action offices at the smaller University campuses in Memphis and Tullahoma, Tennessee. His title was changed to Vice President of Equity and Diversity. Defendant states this title was not a vacancy for which plaintiff or anyone else was considered, and was not a promotion for the plaintiff — it paid $11,500 less than plaintiff was earning.
Defendant claims that with respect to the Equity and Diversity Administrator position, the plaintiff was not similarly situated to Robinson in that Leadbetter was not working in one of the offices which was eliminated in 1999 and, thus, plaintiff was not in the pool of persons working in those offices who were considered for reassignment and the absorption of additional responsibilities. Further, Gilley claims plaintiff did not express to the defendant any desire to move out of the General Counsel's Office or to perform a position with exclusively diversity-related responsibilities. Gilley claims he had no reason to believe that plaintiff would be remotely interested in a job paying $35,000 per year less than he was earning at the time.
According to defendant, plaintiff was not in any way within defendant's contemplation when defendant named Robinson as one of five staff vice presidents in August 2000 for several reasons. The additional responsibilities added at the time (oversight for affirmative action offices in Memphis and Tullahoma, Tennessee) were a small incremental addition to Robinson's existing position. There was no "vacancy" and no other "candidate" because Robinson was already performing the large majority of the job. Defendant claims there was no reason for Gilley to consider the plaintiff for a staff vice president job because plaintiff was not on the president's staff whereas Robinson was. Plaintiff did not inform the defendant that he was interested in a diversity/affirmative action position, even after defendant had appointed Robinson to the Equity and Diversity Administrator position. Moreover, defendant had no reason to believe that plaintiff would be interested in a position paying $11,500 less than the plaintiff was making at the time.
Defendant further asserts that he reasonably believed that the assignment of responsibilities as Equity and Diversity Administrator and Vice President of Equity and Diversity to Robinson was a lawful and permissible affirmative action decision consistent with the objectives of the stipulation of settlement entered in Geier v. Alexander, 593 F. Supp. 1263 (M.D.Tenn. 1984). According to defendant, since the entry of the stipulation of settlement, the Middle District Court has not found that the University of Tennessee and the rest of the public higher education have fully satisfied their constitutional duty under the Equal Protection Clause to dismantle the former de jure system.
Defendant states that pursuant to the Geier stipulation, the University submitted certain desegregation goals to the district court. The positions of Equity and Diversity Administrator and Vice President for Equity and Diversity fall within the UWA. According to defendant, in 1999 and 2000, UWA had a substantial under-representation of African-Americans in the administrator classification. Defendant states that he was aware of the substantial under-representation of African-Americans in UWA positions and based his decisions regarding the responsibilities assigned to Robinson, and the resulting title changes, in part, upon the fact that the decisions were consistent with the objectives of the Geier settlement. Defendant asserts he believed that the consideration of race was allowable in assigning these affirmative action responsibilities to Robinson, was lawful under the Geier settlement and consistent with the University's duty under the Equal Protection Clause of the Fourteenth Amendment to take remedial steps to dismantle the former de jure segregated system of public higher education.
GENERAL PRINCIPLES OF QUALIFIED IMMUNITY
Governmental officials, such as former President Gilley, generally have qualified immunity from personal liability for actions taken while performing discretionary functions. Williams v. Commonwealth of Kentucky, 24 F.3d 1526, 1532 (6th Cir. 1994). These officials "generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, (1982). As the Supreme Court in Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034 (1987) put it, "our cases have . . . generally provide[d] government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Thus, qualified immunity turns on "the objective legal reasonableness of an official's act." Anderson, 483 U.S. at 639 (citing Harlow, 457 U.S. at 818-819). The objective legal reasonableness test "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092 (1986).
In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806 (1985), the Supreme Court made clear that qualified immunity is not simply a defense to liability on the merits. Rather, qualified immunity represents:
an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.
Mitchell, 472 U.S. at 526. See also Veney v. Hogan, 70 F.3d 917, 920 (6th Cir. 1995).
The Harlow qualified immunity inquiry typically has been framed as a two-part test: first, the court asks whether the plaintiff has identified a clearly established federal constitutional or statutory right alleged to have been violated; and second, the court asks whether, notwithstanding the violation, an objectively reasonable official, under the circumstances known to the defendant, could have believed his conduct did not violate clearly established law. Anderson v. Creighton, 483 U.S. 635, 638-639, 107 S.Ct. 3034 (1987); see, e.g., Baker v. Putnal, 75 F.3d 190, 198 (5th Cir. 1996) ("First, the court must determine whether the plaintiff has alleged a violation of a clearly established constitutional right. If the plaintiff fails this step, the defendant is entitled to qualified immunity. If [he] is successful, the issue becomes the objective legal reasonableness of the defendant's conduct under the circumstances."); Weyant v. Okst, 101 F.3d 845, 857-58 (2nd Cir. 1996) ("In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights").
Although a question regarding whether a given constitutional or statutory right was "clearly established" at the time the defendant acted presents a "purely legal question," Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789 (1991), resolution of qualified immunity may in some instances require a "fact-related . . . determination," Johnson v. Jones, 515 U.S. 304, 307, 115 S.Ct. 2151 (1995). It is now well established that where an essential element of the underlying constitutional claim requires intentional discrimination, the plaintiff must present evidence of unlawful intent in order to establish a violation of "clearly established statutory or constitutional rights." Crawford-El v. Britton, 523 U.S. 574, 588-589, 118 S.Ct. 1584 (1998); Poe v. Hayden, 853 F.2d 418, 430-432 (6th Cir. 1988).
In Poe, the plaintiff sued government officials claiming that she was the victim of gender discrimination. The court held that while it was clearly established that gender discrimination against a public employee is a violation of the Fourteenth Amendment's equal protection clause, that does not end the inquiry. "This is so," the court said, "because an essential element of any equal protection claim is purposeful discrimination. Personnel Administrator v. Fenney, 442 U.S. 256, 276, 99 S.Ct. 2282, 2294 (1979)." See Poe, 853 F.2d at 430. Poe holds that "a government official's motive or intent must be considered in the qualified immunity analysis, where unlawful motive or intent is a critical element of the substantive claim." Id. at 431. Put another way, a governmental official "cannot violate a plaintiff's equal protection rights unless the defendant has the intent to discriminate." Mencer v. Hammonds, 134 F.3d 1066, 1070 (11th Cir. 1998).
The district court is required to indicate the clearly established right at issue. Plaintiff claims reverse gender and race discrimination. The case of Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264 (1979), made clear that discrimination against a public employee is a violation of the equal protection component of the due process clause of the Fifth Amendment, as long as that discrimination cannot be shown to serve important governmental objectives and is not substantially related to achievement of those objectives. The same is true under the Fourteenth Amendment. See Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733 (1978) ( Fourteenth Amendment's prohibition against "reverse discrimination'). Thus, a reasonable person, during Gilley's tenure at UT, would have known that plaintiff had a clearly established constitutional right to be free of gender and race discrimination.
The next level of analysis is to determine whether there is evidence that Gilley's conduct violated plaintiff's clearly established rights.
The Equal Protection Clause of the Fourteenth Amendment requires government agencies to treat similarly situated people alike. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985). Thus, the threshold inquiry in an equal protection case is whether the plaintiff is similarly situated to others who allegedly received preferential treatment.
In this matter, defendant contends Mizell and Robinson are not similarly situated to plaintiff.
In establishing prong two of the Harlow test (i.e., the objectively reasonable official standard), "the plaintiff must show that the `comparables' are similarly-situated in all respects," Cox v. Electronic Data Systems Corp., 751 F. Supp. 680, 692 (E.D. Mich. 1990), and "that all of the relevant aspects of his employment situation were `nearly identical.'" Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994) (citation omitted). These similarities must exist in all relevant employment circumstances. Id. The Sixth Circuit has indicated that in identifying the factors to be considered in making this determination, a court "should make an independent determination as to the relevancy of a particular aspect of the plaintiff's employment status and that of [the successful applicant]." Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).
The court feels that at this first stage of examining the plaintiff's equal protection claim, the evidence shows that the three individuals at issue were eligible for promotion, so in this critical respect they were "similarly situated." Because it has been determined that the plaintiff was similarly situated to Mizell and Robinson, it must next be determined whether there is sufficient evidence to show that the promotions were made by Gilley on the basis of gender or race.
In cases of reverse discrimination, the Sixth Circuit has indicated
A prima facie case of `reverse discrimination' is established upon a showing (1) that `background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority,' . . . and upon a showing that the employer treated differently employees who were similarly situated but not members of the protected class.
Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 801 (6th Cir. 1994).
Defendant argues that an examination of the facts outlined in the amended answer demonstrates that no reasonable public official would objectively believe it to be discriminatory to select the General Counsel candidate who received the recommendations of the retiring General Counsel, the recently retired President, the three most senior administrators for the University's Knoxville campus, the Dean of the College of Law, and the Trustee who conducted the search. Further, no reasonable public official would objectively believe it to be discriminatory as to Leadbetter to select as General Counsel the candidate who had served in the position of Deputy General Counsel for six years. Defendant also asserts that no reasonable public official would objectively believe it to be discriminatory as to Leadbetter to consolidate several diversity, equity and affirmative action responsibilities into Robinson, the University's liaison with the Legislative Black Caucus, where the resulting position paid $35,000 less than Leadbetter was earning at the time. Finally, no reasonable public official would objectively believe it to be discriminatory to further consolidate the University's affirmative action responsibilities into this equity and diversity position, which paid $11,500 less than plaintiff was then earning.
In employment discrimination cases, the determination of the "objective legal reasonableness" of the defendant's actions rests on establishing that the defendant acted with impermissible intent. Lewis v. City of Ft. Collins, 903 F.2d 752, 755 (10th Cir. 1990). Where, as here, the official pleads facts supporting the "objective legal reasonableness" of his decisions, it is incumbent upon the plaintiff to come forward with evidence of a discriminatory intent. "Absent a discriminatory motive or intent, [the official's] challenged conduct would not violate clearly established law." Id. See also, Poe v. Hayden, 853 F.2d 418, 430-431 (6th Cir. 1988) ("[W]hether conduct does violate clearly established rights will often turn on the intent with which the conduct is performed . . . Thus the objective legal reasonableness of the public employer's conduct will turn, necessarily, on whether that conduct was motivated by racial, sexual or political animus or by a legitimate concern for workplace efficiency"). The Supreme Court has noted that public officials who reasonably but mistakenly violate constitutional rights do not forfeit their qualified immunity defense. Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092 (1986).
The court concludes that at this point in this case, discovery is necessary concerning issues that bear upon the qualified immunity defense. The court finds that a clarification of the facts is necessary before it can rule on the immunity claim. Discovery should be had concerning the actions Gilley took in regard to the three specific positions at issue, and the motivation and intent behind his employment decisions. See Crawford-El v. Britton, 523 U.S. 574, 588-89 (1998); Poe v. Hayden, 853 F.2d 418, 430-32 (6th Cir. 1988).
Plaintiff also seeks to inquire of Gilley regarding the following specific employment decisions allegedly either made by defendant or into which the defendant intervened or otherwise was involved:
1. The hiring of Derrick Anderson, a black male.
2. The hiring, and subsequent rapid advancement and promotion, of Pamela Reed, a female.
3. Defendant's reluctant promotion of Vincent Carilli, a white male, after having earlier directed that Mr. Carilli was not to be hired, in contravention of a search procedure that fully complied with University policy and procedure, and that a minority or female should be hired for this position.
4. The promotion of Katie High, a female.
5. The hiring of Barbara Dewey, the Dean of the Library, a female.
6. The hiring of the Dean of the Veterinary School, a black male.
7. The promotion of Sylvia Davis, a female.
With respect to some of the positions, plaintiff claims (1) Katie High was chosen without any interviews when either of two white males could have been promoted; (2) a woman was chosen for the Dean of the Library position when a white male who had many years of experience and was available for promotion "within the natural chain of progression" applied for the position and was the preference of the search committee; (3) a black male was chosen for the position of Dean of the Veterinary School, but there were already white males employed who could have been promoted "within the natural chain of progression"; and (4) Sylvia Davis was hired without a search, when there was a white male at the same level with substantially greater seniority who could likewise have been promoted "within the natural chain of progression."
As to Vincent Carilli, Dean of Students, plaintiff claims that after Carilli was found qualified and recommended for selection by the search committee after a properly conducted search that fully complied with the procedures established in Geier, the defendant not only did not want to promote "within the natural chain of progression," but expressed contempt for that type of promotion, referring to the proposed selection of Carilli as "inbreeding." Defendant intervened and, stated, in essence, "There are minorities and women out there — go find one.".
Defendant contends isolated treatment of other employees cannot establish, as a matter of law, that he was discriminated against because of his sex or race in the three challenged actions before the court. Plaintiff, however, contends these employment decisions evidence the defendant's repeatedly articulated intent to hire and promote women and minorities, and constitute evidence of engagement in a pattern and practice of taking, directing or approving employment actions which favor minorities and females and disfavor whites and males on the basis of race and/or gender. Plaintiff asserts evidence of pattern and practice discrimination is relevant to the defendant's discriminatory intent, because among other things, defendant's allegedly discriminatory employment actions are intertwined with contradictory explanations for the actions by defendant which undermine defendant's credibility and hence weigh on the issue of intent.
Plaintiff asserts he should be allowed to inquire into what motivated the defendant in making these employment decisions consistently favoring minorities and females over white males. Plaintiff contends inconsistent explanations for employment decisions, for example, invoking a promotion within the "natural chain of progression" when such promotion favors minorities and women, and showing contempt for such promotions when they involve white males, may themselves constitute evidence of discriminatory intent. Further, an elimination of an employer's stated justification for his decision, or establishment of a false explanation, evidences discriminatory intent. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106 (2000). Plaintiff believes the evidence will establish the discrimination by the defendant in favor of women and minorities was the defendant's "standard operating procedure."
In regard to the specific employment decisions, the court finds that plaintiff should be allowed to inquire of the defendant regarding his motivation and intent in hiring, promoting or disfavoring the individuals, and why he possibly departed from normal University policies and procedures in these decisions. No forays into areas totally irrelevant to the qualified immunity inquiry will be tolerated by the court. Plaintiff is also entitled to discovery as to whether the University had yet satisfied its responsibilities under the Geier v. Alexander settlement during the tenure of former President Gilley, and what defendant understood about University search policies and procedures.
IT IS SO ORDERED.